UKPC/SCS County Court Claim - Help urgently requested

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Current draft Defence:

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

UK PARKING CONTROL LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

Preliminary

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. Save where otherwise admitted, each and every allegation in the Particulars of Claim is denied.

2. The Particulars of Claim lack specificity and [STRIKE]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 un-evidenced allegations in the Particulars.
3. The Particulars of Claim[/STRIKE] 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.

3. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). These assertions indicate 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. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

Background

4. It is admitted that at all material times the Defendant was the owner and registered keeper of the vehicle in question. The Defendant is unable to admit or deny whether they were the driver who parked the vehicle on each or every occasion, given the lack of evidence from the Claimant and the fact the car may be driven by more than one relative.

5. The Defendant is a resident and tenant at the location where the Parking Charge Notices in question were issued. The Defendant's landlord has owned the flat for some ten years, and has granted his tenants rights to park based upon the demise, grant and/or easements within his own lease for many years before this Claimant appeared on the scene.

6. It is averred that the Defendant is entitled to rely upon the parking rights granted from the landlord, and further up that chain of authority, the landlord is entitled to rely upon his primacy of contract within his lease, in order to grant his tenants an unfettered right to park.

7. The Claimant is put to strict proof of their due diligence by inspecting the Head Lease and considering the rights of the residents, prior to commencing enforcement. This is a location where residents already enjoyed rights that cannot be varied, restricted or charged for, outwith a lease variation (Landlord & Tenant Act 1987 applies). Where a majority of the leaseholders agree to any proposed variation, if there are less than 9 leases all or all but one of the parties must consent and if there are more than 8 leases, 75% of the parties must consent, and not more than 10% must not object to the proposed variation. This degree of consensus is notoriously hard to achieve and it is averred the Claimant has simply not bothered, and merely set up some signs and imposed permits upon people out of the blue, causing an ongoing private nuisance to those affected.

8. It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

9. It is denied that any parking charges “loss and/or damage" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.

10. 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'. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

Authority to Park and Primacy of Contract

11.There are no terms within the Defendant’s Tenancy Agreement requiring tenants to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. Primacy of contract cannot be amended by Private Parking Company signs unless the Tenant has agreed to a variation of the tenancy, which the Defendant has not.

11.1. There is a large body of case law, which establishes this. In Link Parking Ltd vs J. Parkinson [2016] C7GF50J7, the Judge, referring to a similar case in In Pace Recovery v Mr N [2016] C6GF14F0 [2016] ruled that:
“…the Judge in that case found that the parking company could not amend the terms of the tenancy agreement to bind a tenant, but rather that it would have to be the other party to the contract.

12. In correspondence received by the Defendant, the Claimant relies 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.

13. Entry to the parking area 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.

14. The Particulars of Claim state that the Defendant was parked in a designated space “without clearly displaying a valid permit.” The Defendant does possess a permit and drivers of that car display it accordingly but only as a courtesy, not as a matter of contract or obligation.

14.1. Even if the Defendant is shown to be the driver on every occasion, the foisting of a permit scheme on elderly tenants in this gated complex with an immediate expectation of displaying it, is a particularly unfair burden. The Defendant is an elderly occupant with various ailments slowing her down from a mobility and cognitive aspect and from time to time, due to forgetfulness, temporary misplacement or merely the time taken to get into the flat to fetch the permit, it is not always readily available within minutes of parking. The photographic evidence only shows the car over a short period, on these occasions, and is not evidence of a non authorised driver.

15. It is stated within the Tenancy agreement that The Tenant has the right to “quietly possess and enjoy the Property during the Agreement without any lawful interruption from the Landlord” so long as the Tenant complies with the terms of the Agreement and has proper respect for other tenants and neighbours. The only restrictions upon parking disallow parking of unroadworthy or commercial vehicles.

16. The Claimant’s notices attempt to make a forbidding offer, which isn’t an offer at all therefore no contract exists. The claimant’s notices clearly state no unauthorised parking therefore there is no offer of a contract for those who are supposedly unauthorised and therefore no contract.

17. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

18. The principle of primacy of contract of the terms of a Lease, overriding any purported terms conveyed by a parking operator's signage, is well rehearsed in numerous persuasive Judgments given at various County Court hearing centres. The Defendant will provide transcripts of a selection of Approved Judgments supporting this principle at the appropriate time, should this matter proceed to trial.

19. The Defendant avers that the operator’s signs cannot override the existing rights enjoyed by residents. Accordingly, using the statutory wording from the Protection of Freedoms Act 2012, Schedule 4 (the POFA) relating to parking charges on private land, it is denied that:
19.1. there was any 'relevant contract'[STRIKE]agreement as[/STRIKE] between the Defendant or driver of the vehicle and the Claimant.
19.2. there was any 'relevant obligation' (at all) to display a permit. [STRIKE]and
19.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.[/STRIKE]

Wholly unreasonable and vexatious claim - no legitimate interest

20. The Defendant avers that there can be no "legitimate interest" in penalising residents for using parking spaces, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is contrary to the requirement of good faith and "out of all proportion to any legitimate interest" to fine residents or their visitors for using the parking spaces provided. It is further averred that the Claimant's local staff see the same vehicles every day and knew, or should have known, that the vehicle was authorised, due to seeing the permit on multiple occasions.

21. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

[STRIKE]22. The Claimant, or their legal representative, has added an additional sum of £60 to the original £100 parking charge, for which no legitimate justification has been provided. 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 understood to be £100. 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.

22.1 Furthermore, the Defendant submits that the legal representatives’ costs have not actually been incurred by the Claimant. Correspondence on behalf of the Claimant advises that these additional £60 sums are owed due to costs incurred by the Claimant’s use of their “debt recovery agent” (Debt Recovery Plus). However, this company operates on a ‘No Win, No Fee’ basis, and as the Defendant has made no payment, no fee can have been incurred by the Claimant with regard to the matters under judgment. The Defendant suggests that this action may be indicative of a pattern of behaviour by the Claimant whereby they seek payment where none is truly owed.[/STRIKE]

22. The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case for four PCNs, a maximum of £400 depending on the Claimant's full compliance with the POFA and establishing a breach of a 'relevant obligation' and/or 'relevant contract'.

22.1. This claim inflates the total to an eye-watering £770, in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process and may consider using the court's case management powers to strike the claim out of the court's own volition. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot.

22.2. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration costs allegedly incurred by already renumerated clerical staff working for SCS Law in issuing robo-claims.

22.3. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs at all. The Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims at all.

22.4. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. It is also a fact that debt collection agencies act on a no-win-no-fee basis for parking operators, so no such costs have been incurred in truth. Thus, there can be no 'damages' to pile on top of any parking charge claim, and the Defendant asks that the Court takes judicial notice of this repeated abuse of consumers rights and remedies, caused by parking firms artificially inflating their robo-claims.

23. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial, the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

24. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

24.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

25. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

I believe the facts contained in this Defence are true.


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