County Court Papers for parking in own business car park

Clairns · 7 January 2019 at 11:55PM

Hi,
We rent a business and have been allocated two parking spaces in the car park. We pay business rates and rent for these spaces.

About 18 months into our lease the management company sought the services of a parking company to manage the spaces. They issued parking permits for two numbered spaces.

Last summer we parked for a few moments in a parking space that wasn't allocated to us and they issued us with a PCN. We ignored their invoice and they didn't send anything else until last week when a claim form from the County Court (Northampton) arrived seeking a total of £185. £160 and £25 court costs. I don't know where they get these figures from!!!

The parking company involved are Vehicle Control Services. I have sent the acknowledgment of service back in order to get a defence. I have also read I should get a SAR from them (although it says this could take up to 30 days- so I will need to do this straight away).

The lease says
'The right to park 2 cars in the parking spaces within the Common Parts as shall be designated from time to time by the Landlord'
In addition it says
'The rights are granted in common with the Landlord and any other person authorise by the Landlord.'

Can you advise any other additional pieces of evidence I should send for the defence?

The parking permits also expired in the summer and we haven't been issued with an up to date one- but it was just in date when the VCN was issued.

Thanks

KeithP · 7 January 2019 at 11:57PM

What is the Issue Date on your Claim Form?

Did it come from the County Court Business Centre in Northampton, or from somewhere else?

Umkomaas · 8 January 2019 at 12:06AM

Is it your company which is being charged, or an individual. If it's the company, the Claimant can apply to have the court hearing at its own local court (whereas an individual chooses his/her own local court).

How far are you from Sheffield?

What pressure have you put on the management company? Ask them how they fancy a day out in court, especially if Sheffield is miles away, as you will be calling them as a witness. A bit of bluff (as you might be held responsible for their costs), but see how they respond.

Coupon-mad · 8 January 2019 at 12:11AM

The lease says
'The right to park 2 cars in the parking spaces within the Common Parts as shall be designated from time to time by the Landlord'
In addition it says
'The rights are granted in common with the Landlord and any other person authorise by the Landlord.'

Great, so you have a right to park and you pay business rates for that right. You should never have sleepwalked into accepting this regime, at all. Nor should any of the other businesses, this just is not needed and it is you and your customer/clients who will be caught out by these charges.

Can you advise any other additional pieces of evidence I should send for the defence?

You don't send evidence with the defence.

the parking permits also expired in the summer and we haven't been issued with an up to date one

Write separately to the Managing Agents and tell them that they have no issued a new permit and in any case, any attempt to shoe-horn a parking regime and a unilateral attempt to impose an obligation to 'display a permit or be fined' is rejected. This would be a derogation from grant on their part, since your lease and the fact you pay business rates for the 2 spaces demised to you under the agreement gives your company primacy of contract and a right to park that cannot be restricted/removed or altered, or charged for, without a formal variation of the lease, which you have not and will never agree to.

Tell them NOT to bother with these meritless and harassing 'permits' and to mark your two spaces as NOT part of any parking regime from any parking firm, until further notice, and that you reserve the right to take legal action if the MA allows any third party to harass you/your customers or clients, with 'PCNs' for parking on the 2 spaces you have an unfettered and exclusive right or easement to park in.

I realise your case is not about those 2 spaces. I just want you to avoid future problems and NOT to accept this 'permit or else a fine' unneeded and onerous VCS moneymaking scheme in your 2 spaces, at all.

Speak to the other businesses as well and see if they agree, and all do the same, get VCS kicked out sharpish.

Your defence will be similar to the examples in the NEWBIES thread. If the Claim is against 'the company' then you must defend as the company (not in your individual name) and you should read defences in the NEWBIES thread and combine:

- the concise style of those posted by bargepole, linked in the sticky, with

- a similar argument to a typical 'residential lease/derogation from grant' defence, and

- a business defence (there is at least one linked in the sticky thread 2nd post).

Show us what you come up with - and make it concise & written in the third person from 'the company' (not written from a person, so not 'I parked') Include the fact that VCS cannot hold the company liable for the actions of the driver who was merely loading/unloading (or whatever) and was authorised to park in that space.

Let them prove otherwise! How do VCS know whether you were authorised to stop in the bay to unload, even if that bay was demised to another business rate paying company? They don't.

Look as well at threads where VCS have tried to use CPS v AJH Films, as they will try to say that the company is liable for the actions of their employees (true) and you will need to understand what they will say, so you can work out how to rebut it at the hearing or in the later Witness Statement/evidence stage.

Clairns · 23 January 2019 at 8:57PM

I have tried to put pressure on the management company (who are not responding at all) and VCS who responded to say they will look at cancelling the claim. I have sent numerous e-mails to VCS for confirmation that they have dropped the claim and haven't heard anything until today when they said I need to e-mail litigation@vehiclecontrol.co.uk I am not sure if this is a delaying tactic.

So I have prepared a defence attached below for your comment which is based on one I found in the newbie thread which I hope to send tomorrow.

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on ?????? 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.

3. The Particulars refer to the material location as 'St James House. The Defendant has, since ?????? held legal title under the terms of a lease, to Part Floor 2 at that location, we also pay business rates for three spaces in the car park. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4.. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles. The right to park 2 cars in the parking spaces within the Common Parts as shall be designated from time to time by the Landlord, we have had nothing in writing to confirm which spaces apart from the permits which expired in the summer of 2018. The permits have not been replaced or updated since they expired and we have received no communication from the Landlord or the Claimant.

5.. 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 of same, indeed the original permits issued expired in the summer of 2018 and have not been replaced.

6. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

7. 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 lease holders.

8. Further and in the alternative, 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 is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

8.1. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

8.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to lease holders, as is on offer to the general public and trespassers. However, lease holders are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' 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 (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

9. 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. 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.

10. The Claimant, or their legal representatives, has added an additional sum of £65 to the original £100 parking charge, for which no explanation or 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 £100 in this instance. 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.

11. 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. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £185 the Defendant avers that this inflation of the considered amount is a gross abuse of process.

12. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

12.1. 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 leaseholders 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 lease holders to court under excuse of a contractual breach that cannot lawfully exist.

I believe that the facts stated in this Defence are true.

KeithP · 23 January 2019 at 9:03PM

Any answers available to the questions in post #2 above?

Clairns · 23 January 2019 at 9:07PM

It was 28 December and came from County Court Business Centre in Northampton

KeithP · 23 January 2019 at 9:11PM

Clairns wrote: »

It was 28 December and came from County Court Business Centre in Northampton

With a Claim Issue Date of 28th December, you had until Wednesday 16th January to do the Acknowledgement of Service.

Did you do the Acknowledgement of Service before that date?
Please confirm that you did the AoS in time.

If you did the AoS in a timely manner, you then have until 4pm on Wednesday 30th January 2019 to file your Defence.

That's just one week away. Loads of time to hone your Defence, but don't leave it to the very last minute.

When you are happy with the content, your Defence should be filed via email as suggested here:

Sign it and date it.
Scan the signed document back in and save it as a pdf.
Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Clairns · 23 January 2019 at 9:13PM

Yes I did the acknowledgement of service in early January. I will wait until tomorrow morning for feedback on my defence but I hope to send it as you described then.

Thanks Keith

Coupon-mad · 23 January 2019 at 10:07PM

Your defence looks good.

Your defence says you pay business rates for three spaces. Don't you mean two?

I'd suggest adding a point (I couldn't see it) that the Claimant is not the landowner and so has no standing (see other defences which almost all have this). I think in your case it's important as you don't know that the actual site landowner has authorised this regime which clearly sets out to penalise paying business leaseholders.

Only the Managing Agent (not a landowner) has done so as far as you know, and the lease might only state that the landowner themselves can vary the lease...?

A few suggested changes here too:

3. The Particulars refer to the material location as 'St James House. The Defendant has, since ?????? held legal title under the terms of a lease, to Part Floor 2 at that location, we also pay business rates and rent for [STRIKE]three[/STRIKE] two spaces in the car park. At some point, the managing agents contracted with the Claimant company, as the Defendant company understood it, to deter unauthorised parking, and we were asked to display permits as a courtesy to identify our vehicles easily. This was not introduced as any kind of obligation or onerous contractual term and our drivers continued to park because we had that unfettered right.[STRIKE] to enforce parking conditions at the estate. [/STRIKE]

4.. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles. The right to park 2 cars in the parking spaces within the Common Parts as shall be designated from time to time by the Landlord, however we have had nothing in writing to confirm which spaces these might be. Thus the business users have the honest belief that the parking rights & easements operate on a non-allocated, first come first served basis with a grant into perpetuity or expiry of the lease, to use two spaces. [STRIKE]apart from the permits which expired in the summer of 2018. The permits have not been replaced or updated since they expired and we have received no communication from the Landlord or the Claimant.[/STRIKE]

5.. 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 of same, indeed the original permits issued expired in the summer of 2018. [STRIKE]and have not been replaced.[/STRIKE] The permits have not been replaced or updated since they expired and we have received no communication from the Landlord or the Claimant, to provide new ones.

Is the claim addressed to a person, or a company? Remember to state the Defendant correctly, to match the claim, and if that's a company, then an officer of the company must sign the defence.

And, if the vehicles were only parked momentarily then there is another defence point that they were being used to load/unload, drop off or pick up a passenger, or that the driver was a visitor who stopped only to enquire about any permit, and which space to park in to access the company they were visiting, since the spaces were not numbered.

That conduct is not parking, under any definition, and would require a grace period before enforcement commenced.

Clairns · 20 June 2019 at 12:07PM

So I have my day in court against VCS next week.

I have submitted all documents including my evidence and witness statement. I also did an information request which was really helpful in getting all evidence from them.

Their main argument is I parked in a space which wasn't allocated to us on the permit. However, on the day in question there were building works which blocked off the spaces that they had allocated to us.

I included photographic evidence of this with the witness statement (you can clearly see the works van and the traffic cones and bollards totally blocking off the usual spaces) and you can even see this in the background of the photos VCS took on the day and that they have submitted as evidence!!!

The car was only in the unallocated space for a short period of time while I undertook urgent business at the property.

Any other advice for my day in court? The court have confirmed that VCS have paid the fee and the hearing will go ahead.

County Court Papers for parking in own business car park

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