PCN to keeper questions

Sorry guys, maybe there's a misunderstanding or I haven't explained myself properly!



I have read the newbies thread and I have already drafted a defence above, so I'm not sure if you've seen it? I was asking for pointers for the defence, not for the thread.



Here is my draft again anyway to save any confusion and any pointers or tips to add or take away would be great!


Here is my draft defence


Statement of Defence

In the County Court Business Centre
Claim Number:

Between:



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. 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.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXX which is the subject of these proceedings. The vehicle is insured with XXX with XXX of named drivers permitted to use it.

4. It is admitted that on XXX the Defendant's vehicle was parked at XXX

5. It is denied that the Defendant was the driver of the vehicle. 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 and leaseholder of XXX; 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 lease, which cannot be fettered by any alleged parking terms. The lease terms provide the exclusive right to park a private motor 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.

7. In D7GF307F - UKCPM v Mr D - before Deputy District Judge Skelly on 1st February 2018 at Clerkenwell, a similar thin excuse of an argument from a private parking firm inflicting a nuisance on residents & visitors was dismissed. When not sitting as a Judge, DDJ Skelly is a barrister specialising in property law. The managing agents were named as a party to the lease, and there was a clause which said that they could enter and make regulations for the !!!8216;efficient and proper organisation and running of the estate!!!8217;. However, this could not excuse a change as intrusive and onerous as to override the grant of free resident/visitor parking, effectively restricting and charging for a right previously enjoyed, without the required consensus and deed of variation. It would be like the agents suddenly stipulating that residents had to hang a Union Jack out of the window whenever they were at home; clearly unreasonable and not in the interests of the consumer.

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.

9. Accordingly it is denied that:
9.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
9.2. there was any obligation (at all) to display a permit; and
9.3. 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
10. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar 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 - both upon entry to the site and throughout.
10.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
10.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
10.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
10.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
10.2. 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.

11. 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.

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

13. 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.


Obviously I've based most of my defence on the one used by Johnersh. I've added point 7 as it applies to me. I've changed part of the wording here ;efficient and proper organisation and running of the estate;. Is that ok?


Also, there is an 'obligation' for all leesees to comply with new regulations '!!!8220;to comply with and observe any reasonable regulations which the management company may make to govern the use of the apartments and the reserved property and for the food of the management of the same.!!!8221;


Do I need to put that anywhere or just leave that out?


Thanks

With regards to the reasonable regulation, in my lease it says "the exclusive right to park a private motor vehicle in the car parking space edged blue on the plot plan subject to any reasonable regulation which the Management Company may make in relation thereto" So the clause that says the space is mine already has the same statement "reasoanble reguatlion" so is there anyway I could cover my bases anyway as it'd be impossible not to tip them off?


Not sure if I am being stupid, but just so I'm clear, the defence and witness statements are 2 different things albeit very similar?


Also with regards to a witness statement for my neighbors, do I just get them to sign a witness statement written for myself or do I need to add anything else?

Thanks

Ok thanks for your help so far coupon-mad! Very much appreciated.


When you say in my evidence, do you mean in my WS?

Also, as my defence is now more or less done, I need to print,sign and post (signed for) to the Northampton county court business centre. Is that correct? Should I do this now while I prepare the WS etc?


Then further on after that, I wait for the DQ to complete and prepare these WS and evidences once I hear my Notice of Allocation?


Thanks again

Just emailed the defence as you said KeithP, thanks.


Should I just keep preparing my WS in prep for a DQ?

Thanks guys