Thanks Coupon-Mad!
I've fixed the "I'd like to" section, and broken point 2 into 2 and 3, including the standard text from bargepole on landowner authority I found in the Newbies thread.
Anything else key I'm missing here?:
Preliminary Matters
1. The Defendant - whose legal name is ‘XXXX XXXX’, not ‘XXXX XXXX’ as stated in the claim - denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A).
3. 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.
4. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charges' incurred on [DATES]. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates 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.
4.1. On the 20th September 2016 a similar private parking
charge claim was struck out by District Judge Cross of St
Albans County Court without a hearing due to their ‘roboclaim’ particulars being
incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could
give rise to any apparent claim in law.’
5. The Claimant has not complied with the pre-court protocol
5.1. No Letter of Claim was sent to the Defendant and no initial information was sent to
the Defendant.
5.2. According to Para 4 on non-compliance and sanction there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process.
Statement of defence
6. The Particulars refer to the material location as '[LOCATION]'. The Defendant has, since [DATE], held legal title under the terms of a lease, to Flat No. XX at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.
7. The secure car parking area contains allocated parking spaces demised to some residents. Entry to the gated parking is by means of a key fob, of a type only issued to residents by the landlord. Any vehicles parked therein are, therefore, de facto authorised to be there.
8. A parking space is made available for the Defendant under the terms of the residential lease.
8.1. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display.
8.2. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents, nor charge for them, or this would constitute a matter of 'derogation from grant' which the courts could not support.
8.3. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.
9. Furthermore, the defendant had verbal permission from the property receptionist to park in the space for the entire duration in which these 5 tickets were received.
10. The signs refer to 'Authorised Vehicles Only/Terms of parking without permission', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This does not apply as:
10.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the key fob
10.2. The Claimant 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 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, and neither have they bothered to check for any rights or easements that their regime will interfere with.
11. 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. This is not the case:
11.1. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas no such breach occurred in this case, because there was no valid contract.
11.2. The 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these residential circumstances. Especially considering this case applies to 5 tickets over a very short period of time in a gated residential carpark which a key fob is required to access.
12. As established in ParkingEye v Beavis [2015] UKSC 67 the claimant can only claim for actual damages, not fictional amounts. This key-fob access only, residential car park always had spaces all 9 months I lived there. As such even if the claim were true, the claimant would have suffered no actual damages, and to £500 is greater than the amount of rent paid monthly as a tenant for the property (which includes parking).
13. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14.
I believe that the facts stated in this Defence are true.
