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  • FIRST POST
    • 123Messiah
    • By 123Messiah 17th Nov 17, 12:41 AM
    • 32Posts
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    123Messiah
    Gladstones letter before claim
    • #1
    • 17th Nov 17, 12:41 AM
    Gladstones letter before claim 17th Nov 17 at 12:41 AM
    Hi,

    I previously hijacked someones thread by accident but have started a new one! Apologies!

    When the driver visits there sister (which is quite often) the driver normally park in a visitors bay with a visitors permit but if there are no spaces anywhere the driver parks in an undesignated place.
    In the past the driver has got parking charges which the driver have ignored and nothing has ever come of it but recently the driver got 2 which the driver never responded to of course but now received a letter before claim.



    Kind regards
    Last edited by 123Messiah; 12-03-2018 at 7:33 PM. Reason: driver
Page 2
    • 123Messiah
    • By 123Messiah 10th Mar 18, 12:39 PM
    • 32 Posts
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    123Messiah
    So the driver is halfway through their draft defence and have now just received another letter before claim for 3 other separate incidents all together on the paper in the same place.
    The driver is getting so overwhelmed by this now. The draft they are doing now was from nearly a year ago the one the driver got today was 5 months ago.... shall the driver carry on with their draft defence and deal with the other LBC like I did the previous? The driver is just so fed up now.
    Last edited by 123Messiah; 12-03-2018 at 7:43 PM.
    • Johnersh
    • By Johnersh 10th Mar 18, 1:23 PM
    • 1,013 Posts
    • 1,946 Thanks
    Johnersh
    Yep. These are separate.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • 123Messiah
    • By 123Messiah 10th Mar 18, 2:13 PM
    • 32 Posts
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    123Messiah
    OK, thank you
    • 123Messiah
    • By 123Messiah 11th Mar 18, 4:27 PM
    • 32 Posts
    • 5 Thanks
    123Messiah
    The driver really needs help : (

    Defence

    On xx/xx/xxxx and xx/xx/xxxx the driver had visited their sister, which they have a visitors pass for.
    The driver waits for a visitors bay to become empty so parks in an undesignated place in the estate not in the way of pedestrians or other motorists and then keep a eye out from there sister's window.
    The driver has been doing this for roughly 6 years now and has never been an issue and visitors bays come available quite often.
    There is no wording on the signage to state how long I can remain here otherwise it just states "By parking or remaining at this site otherwise than in accordance with the above, you the driver, are agreeing to the following contractual terms..."

    The permit was displayed so the claimants operatives were aware I had means to be on the estate.

    1. The Signage Is Not of a Standard To Constitue A Contract
    The signage at the site was not of a standard to constitute a !!!8216;contract!!!8217; between myself and the claimant. Without a contract there cannot be a !!!8216;breach of terms!!!8217;.

    2. Consumer Contracts Regulations 2013 and !!!8216;Right Of Cancellation!!!8217; Applies
    If it was assumed a contract did exist it would be categorised as a !!!8216;distance contract!!!8217; under Consumer Contracts Regulations. As such I would have had !!!8216;right of cancellation!!!8217; from said contract.

    3. The Claimant Has No Standing to Bring a Case
    Despite being asked, the claimant has failed to demonstrate that they have any authority to collect parking charges on the land in question.

    Particulars of defence.

    1. The wording on the sign in question says that "parking in permitted for: vehicles fully displaying a valid parking permit within the front windshield and parked fully within the confines of a marked bay" but does not say how long you can wait outside of these "rules".

    2. The Claimant Has No Standing to Bring a Case
    Despite being asked, the Claimant has failed to demonstrate that they have any authority to collect parking charges on the land in question. The Claimant is put to strict proof as to on what terms they are permitted to operate by the landowner by disclosing the appropriate parts of their contract.
    Last edited by 123Messiah; 12-03-2018 at 7:45 PM. Reason: dates
    • 123Messiah
    • By 123Messiah 11th Mar 18, 4:28 PM
    • 32 Posts
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    123Messiah
    shall I send a picture of the sign to help me out if so how can I send.
    • Coupon-mad
    • By Coupon-mad 11th Mar 18, 7:49 PM
    • 57,309 Posts
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    Coupon-mad
    That's not written in the style of defence that the NEWBIES thread (second post) shows you.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • 123Messiah
    • By 123Messiah 12th Mar 18, 5:07 PM
    • 32 Posts
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    123Messiah
    DRAFT DEFENCE

    IN THE COUNTY COURT

    CLAIM No: XXXXXXXXX

    BETWEEN:

    GLADSTONES

    -and-

    XXX

    ___________________________________________
    DEFENCE STATEMENT
    _______________________________________________

    On XX/XX/XXXX and XX/XX/XXXX The driver had visited there sisters house which happens monthly for around 5 years with a visitors pass.
    The driver waits for a visitors bay to become empty so parks in an undesignated place in the estate not in the way of pedestrians or other motorists and then keep a eye out from there sister's window. (not all the time but when no spaces are available at the time).
    The driver has been doing this for roughly 5 years now and has never been an issue and visitors bays come available quite often.
    There is no wording on the signage to state how long I can remain here otherwise it just states "By parking or remaining at this site otherwise than in accordance with the above, you the driver, are agreeing to the following contractual terms..."

    The permit was displayed so the claimants operatives were aware I had means to be on the estate.

    1. The signage at the site was not of a standard to constitute a !!!8216;contract!!!8217; between myself and the claimant. Without a contract there cannot be a !!!8216;breach of terms!!!8217;.

    2. Tenancy agreement (waiting for my sister to send so I can read through)

    3. The Claimant Has No Standing to Bring a Case
    Despite being asked, the claimant has failed to demonstrate that they have any authority to collect parking charges on the land in question.

    Particulars of defence.

    1. The wording on the sign in question says that "parking in permitted for: vehicles fully displaying a valid parking permit within the front windshield and parked fully within the confines of a marked bay" but does not say how long you can wait outside of these "rules".

    2. (Waiting for tenancy agreement)

    3. The Claimant Has No Standing to Bring a Case
    Despite being asked, the Claimant has failed to demonstrate that they have any authority to collect parking charges on the land in question. The Claimant is put to strict proof as to on what terms they are permitted to operate by the landowner by disclosing the appropriate parts of their contract.
    Last edited by 123Messiah; 12-03-2018 at 7:47 PM. Reason: the driver
    • Coupon-mad
    • By Coupon-mad 12th Mar 18, 9:45 PM
    • 57,309 Posts
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    Coupon-mad
    This is nothing like other defences and is ungrammatical, you switch from present tense to past tense, you switch from 'the driver' to 'I can remain' and you have 'there' instead of 'their' and the heading says 'Defence Statement' when it should just be 'DEFENCE'...

    Why haven't you simply adapted Johnersh's residential defence in the NEWBIES thread? NO LINK.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • 1505grandad
    • By 1505grandad 13th Mar 18, 9:03 AM
    • 64 Posts
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    1505grandad
    I don't think that Gladstones are the claimant.
    • 123Messiah
    • By 123Messiah 13th Mar 18, 10:29 AM
    • 32 Posts
    • 5 Thanks
    123Messiah
    IN THE COUNTY COURT

    CLAIM No: XXXXXXXXX

    BETWEEN:

    PARKING AND PROPERTY I
    MANAGEMENT LIMITED
    OCEAN HOUSE
    12th FLOOR
    THE RING
    BRACKNELL
    RG12 1AX

    -and-

    XXX

    ___________________________________________
    DEFENCE
    _______________________________________________

    Preliminary
    1. The Particulars of Claim lack specificity . 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 XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it

    4. It is admitted that on [date] the Defendant's vehicle was parked at [location]
    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 !!!8216;relevant obligation!!!8217; 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 [address], 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 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.

    7. The Defendant avers that the operator!!!8217;s 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.

    7. Accordingly it is denied that:
    7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
    7.2. there was any obligation (at all) to display a permit; and
    7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

    STATEMENT OF TRUTH
    I confirm that the contents of this Defence are true.



    Can I inbox coupon mad in regards to the tenancy agreement if claus's shall be put in under point 6?

    Kind regards
    • nosferatu1001
    • By nosferatu1001 13th Mar 18, 12:47 PM
    • 2,432 Posts
    • 2,980 Thanks
    nosferatu1001
    Just post them here

    You dont include evidence in a defence. It is simply the set of arguments you present as to why you are not liable.
    • 123Messiah
    • By 123Messiah 13th Mar 18, 1:00 PM
    • 32 Posts
    • 5 Thanks
    123Messiah
    ok thanks I will do shortly.

    Is the defence ready to send?
    • nosferatu1001
    • By nosferatu1001 13th Mar 18, 1:14 PM
    • 2,432 Posts
    • 2,980 Thanks
    nosferatu1001
    Are YOU happy with it?
    This is YOUR court case, so YOU must know and be happy with all aspects of your defence.
    • 123Messiah
    • By 123Messiah 13th Mar 18, 2:36 PM
    • 32 Posts
    • 5 Thanks
    123Messiah
    the tenancy says:

    (27) Parking (i) not to park any vehicle other than a currently taxed private motor or motorcycle on the Association's property and such parking must be within designated parking areas.

    (ii) Vehicles are parked entirely at owners risk and the Association does not accept liability for any damage caused to the vehicle, or by vehicle to property or persons.

    (iii) Not to park any vehicles in excess of a UK Maximum Gross Weight of 3.5 tonnes on Association land.

    (iv) Any vehicles parked on Association land must be adequately insured.

    (v) Not to park or store caravans, trailers, boats or mobile homes on Association land.

    (vi) Not to block local roadways or other vehicular access and to keep them and car parking spaces clear of unroadworthy vehicles, untaxed vehicles over 15CWT, and other obstructions and free from oil spillage.

    (vii) Not to park any vehicle motorcycle, caravan, boat or trailer where it is likely to cause a nuisance to anyone.

    (viii) You agree that the Association shall be entitled to remove from the Associations property and/or dispose of any vehicle belonging to the tenant which in the Association's opinion is unroadworthy and/or unsafe and/or is not displaying a current and valid disk or any vehicle parked in breach of this Tenancy Agreement and the Association shall be entitled to recover the costs of such removal from you.




    The defendant has never been approached by the association so therefore in the 5 years has seen to have done no wrong by them?
    If the defendant was in breach of there tenancy agreement in regards to the parking Claus then the Assosication has rights to approach them.

    At what stage would this be added in as in the defence can't add evidence.

    MUCH help would be appreciated : )

    Defendant wants to send off this week.

    Kind regards
    Last edited by 123Messiah; 13-03-2018 at 3:28 PM. Reason: driver to defendant
    • KeithP
    • By KeithP 13th Mar 18, 3:03 PM
    • 7,137 Posts
    • 6,583 Thanks
    KeithP
    What's all that about then?

    Your defence states that the defendant denies being the driver.

    Yet the last few lines of your most recent post, and most of your other posts, tells the world that the driver is the defendant.

    Surely the keeper is the defendant?

    Make up your mind.
    .
    • 123Messiah
    • By 123Messiah 13th Mar 18, 3:41 PM
    • 32 Posts
    • 5 Thanks
    123Messiah
    can I add to the defence.

    8. As set out on defendants sister's tenancy agreement, for which the defendant visits regulary it states.

    (viii) You agree that the Association shall be entitled to remove from the Associations property and/or dispose of any vehicle belonging to the tenant which in the Association's opinion is unroadworthy and/or unsafe and/or is not displaying a current and valid disk or any vehicle parked in breach of this Tenancy Agreement and the Association shall be entitled to recover the costs of such removal from you.

    The association has never approached the defendant nor does it mention anything about third parties operatives.
    • nosferatu1001
    • By nosferatu1001 13th Mar 18, 4:02 PM
    • 2,432 Posts
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    nosferatu1001
    You need to URGENTLY review your defence as pointed out above.
    • 123Messiah
    • By 123Messiah 13th Mar 18, 4:49 PM
    • 32 Posts
    • 5 Thanks
    123Messiah
    UPDATED:

    IN THE COUNTY COURT

    CLAIM No: XXXXXXXXX

    BETWEEN:

    PARKING AND PROPERTY
    MANAGEMENT LIMITED
    OCEAN HOUSE
    12th FLOOR
    THE RING
    BRACKNELL
    RG12 1AX

    -and-

    XXX

    ___________________________________________
    DEFENCE
    _______________________________________________

    Preliminary
    1. The Particulars of Claim lack specificity . 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 XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it

    4. It is admitted that on [date] the Defendant's vehicle was parked at [location]

    Authority to Park and Primacy of Contract
    5. 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 [address], 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 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.

    6. The Defendant avers that the operators 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.

    7. Accordingly it is denied that:
    7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
    7.2. there was any obligation (at all) to display a permit; and
    7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

    STATEMENT OF TRUTH
    I confirm that the contents of this Defence are true.
    • 123Messiah
    • By 123Messiah 13th Mar 18, 4:52 PM
    • 32 Posts
    • 5 Thanks
    123Messiah
    Even if the driver was not in a bay at the date and time in question they were not approached by the association as per the tenancy agreement nor were any notes left on the car is question.

    The driver would always park in a bay shortly after with a permit visible.
    Last edited by 123Messiah; 13-03-2018 at 5:06 PM.
    • Coupon-mad
    • By Coupon-mad 14th Mar 18, 1:24 AM
    • 57,309 Posts
    • 70,913 Thanks
    Coupon-mad
    Only skim-read but what about at least mentioning the alternative issues like:

    - unclear, sporadic signs
    - no landowner authority
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

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