URGENT: County Court Claim

3. 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. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

With respect to my scenario, all correspondence was returned to sender as gone away as I moved out of my family home for a period of time due to personal reasons. Shall I simply remove this sentence?

Despite the fact that the Defendant was not living at the address during the material time - due to personal reasons, which the Defendant later learnt that the Claimant knew, due to all their letters being returned marked 'gone away' - the Claimant made no attempt to trace the Defendant and issued the claim to the address where they knew the Defendant had not been residing.

Background

4. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark xxxxxx which is the subject of these proceedings. The vehicle was insured with xxxxx Insurance with two named drivers permitted to use it. Furthermore, several drivers had access to this vehicle via their own Comprehensive insurance policies which allowed them to drive other vehicles with the consent of the registered keeper.

I have added this bit in, is this ok?

Authority to Park and Primacy of Contract

7. 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 of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement for visitors to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms and puts the Claimant to strict proof otherwise. [STRIKE]The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.[/STRIKE]

8. 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. 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.

8.1. Under the Landlord and Tenant Act 1987, for such a variation to have been agreed by the residents, it is the Defendant's understanding that 75% of the parties must have consented and not more than 10% must not have objected to any proposed material change (which this nuisance most certainly is). This is the Claimant's case to prove on the balance of probabilities and they have failed.

8.2. Notwithstanding the above, it is a relevant fact that this is a secure car park and the only way to get into the car park is by having a key fob or a resident to let a driver in. That deliberate action by residents or by use of a key fob, authorises every visitor at this location and there can be no question of the driver being considered 'unauthorised'.

I am unsure of how to amend or if I should include this part at all as I do not know who the resident being visited by the driver of the vehicle was, I am unsure whether they still reside their and do not have access to any lease/tenancy agreements. I am struggling with this part the most. Any help would be much appreciated.

11. The defendant avers that the driver must have been completely unaware that the site was being enforced by any restrictive terms, because drivers of this vehicle are law abiding and circumspect, and would not have ignored prominent terms nor accepted any sign dressing up an 'offer' to park for £100 when the car could have been parked nearby for £1 or so in a pay & display car park. The residents and visitors at residential locations like this, have a legitimate expectation of a right of way and unfettered right to use the demised parking bays for visitors, with no charge.

12. Since there has been no variation of the residents' agreements (the Claimant is put to strict proof) a Managing Agent cannot impose this charging regime via an onerous back door method of 'signs and permits' with charges imposed on visitors and residents, where parking was previously free.