Tweet
Hi all.
Thanks for standing up to these cowboys and I would appreciate some advice please on my own issue which is now in the court claim stage. I have until Thursday to submit my defence (which I'll include a redacted version of in this post), but first some background facts.
I rent a multi-storey flat with a private car park below monitored by UKPC. I have a permit (like a business card) with a bay and permit number on the bottom of it which entitles me to park in a dedicated space. Until the end of September, my landlord had not provide me the matching bay number permit, so I was using one borrowed from the letting agent for another bay.
14/08/2023 - Tenancy agreement at flat begins
28/08/2023 – Move into flat and to best of my knowledge display permit in dashboard every day
12/09/2023 – Receive PCN for displaying a non-valid permit
13/09/2023 – Received another PCN for the same reason (car likely hasn’t moved since day before)
During this time UKPC attempts to contact me at my old address. Turns out I hadn’t updated my VC5 in time (rookie error I know). As the PCN had no name on it, the old house occupier had returned to sender.
12/01/2024 – My first knowledge of the offence. Receive two letters from DCB legal claiming I owe £340. £170 each for two unpaid PCNs (presumably £100 fine plus £70 in debt collection fee).
15/01/2024 – Phone DCB legal to enquire about the charge (probably another rookie error). They claim my permit was not shown correctly. I remember the first few weeks after moving in I used to sometimes stand the permit up at the base of the windscreen like a parking ticket. This could have obscured some info at the very bottom of the pass (e.g. bay number). Permit number is also possibly visible if you take a picture with a smart phone and zoom in (but not in the images provided by DCB later on). The DCB legal handler was also very intimidating e.g. pay us now or in instalments or we’ll take you to court which will be a lot of effort for you. They did not offer a clear debt resolution procedure or explain my rights as outlined in the letter.
19/01/2024 – Go to my building manager to get him to contact UKPC and reduce/remove the fine as has happened for similar incidents previously.
22/01/2024 – UKPC tell my building manage they are unable to cancel as it has moved to the litigation phase. I reply to him and UKPC to contest this decision on grounds of natural justice and that initiators of litigation have the authority to cancel or settle claims at any point in the process. Also requested a photo of my vehicle on the PCN issue dates.
05/02/2024 - In view of reading similar threads on various forums, I send an e-mail to the DCN challenging the letter of claim, stating my intent to defend in court (if necessary) and questioning why the fees have been inflated (specifically the VAT of the UKPC to DCB).
14/02/2024 - Receive e-mail reply stating the claim, images of the car (can share redacted versions if necessary) is now for £320 but they still intend to proceed
15/04/2024 - Receive court claim letter
20/04/2024 - Acknowledgment of service submitted.
I now come to my defence, which I've based on various threads and intend to submit as soon as possible, but just thought it might be a good idea to get some feedback or any other suggestions on this forum please. Many thanks in advance for taking the time to read this. X is a generic redaction (address, names etc.), Y refers to the bay matching to my flat and Z to the one where the letting agency had given me a pass before my landlord did.
IN THE CIVIL NATIONAL BUSINESS CENTRE
Claim No.: X
Between
UK PARKING CONTROL LIMITED
(Claimant)
-and-
X
(Defendant)
DEFENCE
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)' issued on 12/09/2023 and 13/09/2023. 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 is pursued as the driver of the vehicle’, whilst also stating ‘in the alternative the Defendant is pursued as 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 pre-action letter of claim (dated 12/01/2024) was claiming for £340 in Parking Charges. The Claimant was successfully challenged by e-mail (05/02/2024) as to why this was above the £320 maximum charge as purported by their signage. This highlights the Claimant’s nature to seek arbitrary extra fees disguised as Parking Charges as has been well documented by Parliamentarians who have described "cowboy [private parking] operators" that "fleece their victims.”
4. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question, but liability is denied.
5. The Particulars refer to the material location as ‘X with typo’. The Defendant has, since 14/08/2023 held legal residence under the terms of a tenancy agreement, to Flat X at that location. At some point, the Building Management Company (X) contracted with the Claimant to enforce parking conditions on behalf of residents at the estate.
6. The secure underground car parking area contains allocated parking spaces demised to residents. Entry to the underground parking is by means of an electronic gate opened by a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.
7.1 Under the terms of the Defendant's tenancy agreement, some references are made to conditions of parking motor vehicles:
“The Premises
References to ‘the Premises’ include reference to any part or parts of the Premises and the curtilage of the same, together with the garden, garage and parking space (if applicable) but excluding: Please see additional clause(s) for more details.”
“9.1. Quiet enjoyment
9.1.1. That the Tenant paying the rent and performing and observing the obligations on the Tenant’s part contained in this Agreement shall peaceably hold and enjoy the Premises during the Term without any unlawful interruption by the Landlord or any person rightfully claiming under, through or in trust for the Landlord.”
7.2 The Property Inventory and Schedule of Condition refers to a “1 parking permit for bay Y MUST DISPLAY IN WINDSCREEN (sic)”. However, no references are made to either the Claimant, or the Claimant’s ability to enforce these conditions via penalty charges. Thus no contract between the Defendant and Claimant was entered. In addition, since no references are made to the Claimant, they are not considered to have acted through or in trust of the Landlord whilst breaching the Defendant’s quiet enjoyment of a dedicated parking space.
7.3 Under the terms of the lease agreement for a property in X, some references are made to the parking of motor vehicles. The Defendant has been provided a copy of the lease from a neighbour (X’s address) to support his defence. The Defendant is not a leaseholder. However, clauses in the lease agreement refer to rights in X for tenants and occupiers. In particular, clause 26 in the seventh schedule (part one) would suggest the Defendant is an underlessee to the lease agreement with rights to perform the covenants conditions on the part of the leaseholder (referred to as lessee). In addition, the Defendant’s tenancy agreement with a X leaseholder would de facto express permission from such leaseholder to the exclusive use of their demised parking space.
THE THIRD SCHEDULE
“5. The right for the Lessee and the tenant or occupiers of the Demised Premises and his or their employees and visitors (in common with all other persons having the like right) to go pass and re-pass at all times and for all purposes of access to and egress from the Demised Premises over and along the passageways corridors lift(s) (if any) and staircases forming part of the internal common parts of the Building in which the Demised Premises are situate
6. The right in common with all others entitled to a similar right to use (if provided) for the reasonable purpose intended the:
6.1 security door entry system and
6.2 the communal television reception system
6.3 the Roof Terrace
7. The benefit of the right to use the Cycle Storage and Refuse Storage area(s) shown on Plan no.2
8. The benefit of the right of way with or without vehicles in the case of any roads and on foot only in the case of footpaths over the new roads constructed or to be constructed between the Car Park and Avebury Boulevard as contained in Clause 13.2.9 of the Transfer but subject as therein mentioned
9. The benefit of the right to exclusive use of the Allocated Parking Space for the purpose of parking one passenger private motor vehicle or light passenger motorcar derived commercial vehicle only contained in Clause 13.2.8.1 of the Transfer but subject as therein mentioned”
THE SEVENTH SCHEDULE, PART ONE
“26. On the occasion of every assignment or transfer of the Demised Premises for the unexpired portion of the Term and in every under-lease which may be granted to insert a covenant by the assignee transferee or underlessee (as the case may be) directly with the Lessor to observe and perform the covenants conditions and obligations on the part of the Lessee appearing in this Lease other than payment of the reserved rents in the case of an under letting or under-lease which for the avoidance of all doubt shall remain to be performed by the Lessee”
THE SEVENTH SCHEDULE, PART TWO
“2. Not to use the Allocated Parking Space for any purpose other than for the purpose of parking one passenger private motor vehicle or light passenger motor car derived commercial vehicle thereon
3. Not to carry out nor allow to be carried out any mechanical or other works to motor vehicles not belonging to the Lessee on the Allocated Parking Space and not to carry out any mechanical or other works to motor vehicles belonging to the Lessee on the Allocated Parking Space save in the case of emergency
4. Not to allow or cause or permit to be allowed the deterioration of any vehicle on the Allocated Parking Space to an unreasonable condition nor to abandon any vehicle whatsoever on any part of the Allocated Parking Space and in the event of any breach of this covenant it shall be lawful for the Lessor without prejudice to its rights hereunder to arrange for the removal of such neglected or abandoned vehicle and to recover from the Lessee any costs incurred by it”
AGREEMENTS AND DECLARATIONS
“6.14. A person (a "Third Party") who is not a party to this Lease has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Lease notwithstanding that any such term may purport to confer or may be construed as conferring a benefit on such Third Party PROVIDED THAT this does not affect any right or remedy of such Third Party which exists or is available apart from that Act”
8. There are no references to the Claimant in the lease agreement. There are also no terms within the lease requiring lessees (including their underlessees and permitted parking space users such as the Defendant) to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. Therefore, 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.
9. 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.
10. On the dates of the alleged breaches, the Defendant’s vehicle was in fact parked in a different parking space (bay Z). This was because the Defendant’s Landlord had been unable to provide the bay Y permit until a visit on 22/09/2023. In the period from the beginning of the tenancy until this date, the Defendant was using an alternative permit obtained from the letting agency (X). Thus, no contract with the Claimant had either been signed referring to bay Z or their ability to enforce parking terms. In addition, ownership of a key fob and de facto expressed permission from the leaseholder of bay Z (as demonstrated through their consent for a permit being given to the Defendant on their behalf by X) demonstrates the Defendant’s right to park undisturbed in this alternative bay until the receipt of the Y permit on 22/09/2023.
11.1 As seen by the Claimant’s photographic evidence, a bay permit (of correct colour and branding) was displayed in the windscreen for the convenience of the Claimant (but not out of obligation). As the Defendant knew he would only be the temporary owner of this non-laminated permit, he did not wish to tape it to his windscreen and risk damaging it. This means the Defendant could have (on occasion) placed the permit in a manner which is not conducive for the Claimant’s enforcement team’s easy viewing of the bay number. However, in other instances the permit was placed with the number clearly visible (not out of obligation). Sound judgement would have led a reasonable person to believe it was therefore the same permit as previously displayed.
11.2 As seen by the Claimant’s photographic evidence pack, a picture of a X work permit belonging to the Defendant has been included. This indicates poor practice and levels of training from the Claimant’s enforcement team, since the presence of an additional permit does not invalidate the permit for bay Z (displayed for convenience but not out of obligation). The reason for the alleged breach is stated as “Parked Displaying A NON Valid Permit” which could imply the Claimant believes the Defendant attempted to use his work permit for X. Even if the Defendant were required to display a permit (which is contested due to ownership of a key fob and lack of an enforceable contract), the reason should have been stated as, for example, “Parked Displaying a Permit with Insufficient Clarity”.
11.3 In previous instances several residents of X have had Parking Charges issued by the Claimant for trivial purposes (e.g. sun-faded permits). This is evidenced by an open letter sent in October 2020 on behalf of X Residents Group to the Building Management Company. In some instances, these Parking Charges were overturned or significantly reduced by contacting the Claimant via the Building Management Company. In other instances Parking Charges to residents have been successfully appealed through Parking on Private Land Appeals (POPLA). Particular attention is drawn to a case from October 2020, where POPLA found in favour of a resident:
“It is a parking operator's responsibility to demonstrate to POPLA that it has issued a parking charge notice correctly and that the parking charge is therefore owed. In the present case, the appellant has stated that they are a leaseholder and have a legal entitlement to park in the space. They say that their lease makes no provision for being liable for being charged for parking in their own parking space. They explain that they dispute UKPC's right to restrict my right to park. Having reviewed the operator's evidence pack, I have seen no evidence that it has the authority. As a result of this, I am therefore unable to determine that the parking charge notice has been issued correctly. Accordingly, this appeal must be allowed. While I acknowledge the appellant has submitted further grounds of appeal in support of their case, as I have allowed this appeal for other reasons, I do not consider it necessary to consider them further.”
This case set a precedent that leaseholders and permitted users of their exclusive spaces (including the Defendant) at X enjoy the right to residential parking free-from interference from third parties such as the Claimant.
12. The Parking Charge was not paid or responded to by the Defendant within 28 days. This was not an admission of liability from the Defendant and whether the charges were responded to or not within 28 days is immaterial of whether the charges were lawfully issued in the first instance. Therefore, engaging with the Building Management Company or POPLA was not a viable route to overturn the charge. However, attempts were made to contact the Claimant through their online web form and through the Building Management Company but to no success. This demonstrates a lack of willingness on behalf of the Claimant to prevent the dispute from going to court and consuming valuable court time.
13. The Defendant relies on primacy of contract (to both of the parking spaces, bay Z and bay Y) and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents. It has been alleged by residents that the Claimant operates a policy towards its enforcement teams of paying them a commission per Parking Charge issued. This is completely counter-intuitive to a service which should add value to residents, (e.g. by protecting their spaces from being parked in by other residents and their guests), as opposed to extracting as many charges as possible from residents in their legitimately allocated parking spaces.
14. Further and in the alternative, the sign at the parking access gate refers to ‘Authorised Vehicles & Permit Holders Only', and suggests that both types of vehicles, authorised and permit holders, can use the car park. The car parking area contains allocated parking spaces demised to residents. Entry to the parking is by means of a key fob. Any vehicles parked therein are, therefore, de facto authorised to be there.
15. 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. In addition, in Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye v Beavis [2015] UKSC 67 does not apply to residential parking as in this instance.
16. The wording on signage of “NO UNAUTHORISED PARKING” implies the forbidding of parking rather than an offer to park. Clearly if there is no permission granted, then there is no offer, so this is further evidence of no contract being entered between the Claimant and the Defendant. In the case that this does indeed constitute an offer to park, it would be as if the Claimant is running the area as a public car park with both legitimate residents and tailgating trespassers offered to park at the risk of a £100 daily charge, unless the residents comply with an onerous regime to which their leases and tenancies do not oblige them to co-operate with. This would be an absurd position for residents to put themselves and the Defendant avers that this further supports that the contract between the Claimant and the Building Management Company was not devised in the interests of residents but in the interests of enriching the Claimant.
17. In the reasonable case that the only unauthorised vehicles in the car park are trespassers or residents in other resident’s spaces, the Defendant’s vehicle clearly does not fall into either of these categories through ownership of a key fob, tenancy agreement to X and de facto permission granted to the exclusive use of spaces bays Z and Y by the respective leaseholders during his tenancy. There are several similar cases to this claim, which set the precedent that this can be considered a trespass issue as opposed to a breach of contract. These include PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6 [2016] and Horizon Parking v Mr J C5GF17X2 [2016]. In all of these cases, the parking company had no standing to a claim. If a trespass were to have occurred (which the Defendant robustly denies), only the landowners (i.e. the Building Management Company or leaseholders of bays Z and Y) would be entitled to pursue a claim, not a parking company.
18. The Claimant, or their legal representatives, has added an additional sum of £120 to the original £200 parking charges, 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(s), which totalled £200 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.
19. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety. Given that the claim is based on alleged contractual parking charges of £200, already significantly inflated and mostly representing profit, as was found in Beavis, the amount claimed on the claim form is inexplicably (around £430). The Defendant avers that this inflation of the considered amount is a gross abuse of process.
20. Further and in the alternative that the court does not agree with the above, and that it is now accepted that the Defendant should have displayed the parking permit for bay Z with more clarity, the court is asked to consider that the Defendant had not been provided with his correctly allocated bay Y permit (as contractually entitled to possess, through the tenancy agreement’s Property Inventory and Schedule of Condition) on the date(s) that the Parking Charges were issued. Therefore, the defendant was unable to fulfil any requirement to display bay Y permit on those date(s). Proofs of e-mail correspondence to verify this can be made available to the court.
Statement of Truth
I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Defendant’s signature:
Date:
Thanks for standing up to these cowboys and I would appreciate some advice please on my own issue which is now in the court claim stage. I have until Thursday to submit my defence (which I'll include a redacted version of in this post), but first some background facts.
I rent a multi-storey flat with a private car park below monitored by UKPC. I have a permit (like a business card) with a bay and permit number on the bottom of it which entitles me to park in a dedicated space. Until the end of September, my landlord had not provide me the matching bay number permit, so I was using one borrowed from the letting agent for another bay.
14/08/2023 - Tenancy agreement at flat begins
28/08/2023 – Move into flat and to best of my knowledge display permit in dashboard every day
12/09/2023 – Receive PCN for displaying a non-valid permit
13/09/2023 – Received another PCN for the same reason (car likely hasn’t moved since day before)
During this time UKPC attempts to contact me at my old address. Turns out I hadn’t updated my VC5 in time (rookie error I know). As the PCN had no name on it, the old house occupier had returned to sender.
12/01/2024 – My first knowledge of the offence. Receive two letters from DCB legal claiming I owe £340. £170 each for two unpaid PCNs (presumably £100 fine plus £70 in debt collection fee).
15/01/2024 – Phone DCB legal to enquire about the charge (probably another rookie error). They claim my permit was not shown correctly. I remember the first few weeks after moving in I used to sometimes stand the permit up at the base of the windscreen like a parking ticket. This could have obscured some info at the very bottom of the pass (e.g. bay number). Permit number is also possibly visible if you take a picture with a smart phone and zoom in (but not in the images provided by DCB later on). The DCB legal handler was also very intimidating e.g. pay us now or in instalments or we’ll take you to court which will be a lot of effort for you. They did not offer a clear debt resolution procedure or explain my rights as outlined in the letter.
19/01/2024 – Go to my building manager to get him to contact UKPC and reduce/remove the fine as has happened for similar incidents previously.
22/01/2024 – UKPC tell my building manage they are unable to cancel as it has moved to the litigation phase. I reply to him and UKPC to contest this decision on grounds of natural justice and that initiators of litigation have the authority to cancel or settle claims at any point in the process. Also requested a photo of my vehicle on the PCN issue dates.
05/02/2024 - In view of reading similar threads on various forums, I send an e-mail to the DCN challenging the letter of claim, stating my intent to defend in court (if necessary) and questioning why the fees have been inflated (specifically the VAT of the UKPC to DCB).
14/02/2024 - Receive e-mail reply stating the claim, images of the car (can share redacted versions if necessary) is now for £320 but they still intend to proceed
15/04/2024 - Receive court claim letter
20/04/2024 - Acknowledgment of service submitted.
I now come to my defence, which I've based on various threads and intend to submit as soon as possible, but just thought it might be a good idea to get some feedback or any other suggestions on this forum please. Many thanks in advance for taking the time to read this. X is a generic redaction (address, names etc.), Y refers to the bay matching to my flat and Z to the one where the letting agency had given me a pass before my landlord did.
IN THE CIVIL NATIONAL BUSINESS CENTRE
Claim No.: X
Between
UK PARKING CONTROL LIMITED
(Claimant)
-and-
X
(Defendant)
DEFENCE
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)' issued on 12/09/2023 and 13/09/2023. 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 is pursued as the driver of the vehicle’, whilst also stating ‘in the alternative the Defendant is pursued as 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 pre-action letter of claim (dated 12/01/2024) was claiming for £340 in Parking Charges. The Claimant was successfully challenged by e-mail (05/02/2024) as to why this was above the £320 maximum charge as purported by their signage. This highlights the Claimant’s nature to seek arbitrary extra fees disguised as Parking Charges as has been well documented by Parliamentarians who have described "cowboy [private parking] operators" that "fleece their victims.”
4. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question, but liability is denied.
5. The Particulars refer to the material location as ‘X with typo’. The Defendant has, since 14/08/2023 held legal residence under the terms of a tenancy agreement, to Flat X at that location. At some point, the Building Management Company (X) contracted with the Claimant to enforce parking conditions on behalf of residents at the estate.
6. The secure underground car parking area contains allocated parking spaces demised to residents. Entry to the underground parking is by means of an electronic gate opened by a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.
7.1 Under the terms of the Defendant's tenancy agreement, some references are made to conditions of parking motor vehicles:
“The Premises
References to ‘the Premises’ include reference to any part or parts of the Premises and the curtilage of the same, together with the garden, garage and parking space (if applicable) but excluding: Please see additional clause(s) for more details.”
“9.1. Quiet enjoyment
9.1.1. That the Tenant paying the rent and performing and observing the obligations on the Tenant’s part contained in this Agreement shall peaceably hold and enjoy the Premises during the Term without any unlawful interruption by the Landlord or any person rightfully claiming under, through or in trust for the Landlord.”
7.2 The Property Inventory and Schedule of Condition refers to a “1 parking permit for bay Y MUST DISPLAY IN WINDSCREEN (sic)”. However, no references are made to either the Claimant, or the Claimant’s ability to enforce these conditions via penalty charges. Thus no contract between the Defendant and Claimant was entered. In addition, since no references are made to the Claimant, they are not considered to have acted through or in trust of the Landlord whilst breaching the Defendant’s quiet enjoyment of a dedicated parking space.
7.3 Under the terms of the lease agreement for a property in X, some references are made to the parking of motor vehicles. The Defendant has been provided a copy of the lease from a neighbour (X’s address) to support his defence. The Defendant is not a leaseholder. However, clauses in the lease agreement refer to rights in X for tenants and occupiers. In particular, clause 26 in the seventh schedule (part one) would suggest the Defendant is an underlessee to the lease agreement with rights to perform the covenants conditions on the part of the leaseholder (referred to as lessee). In addition, the Defendant’s tenancy agreement with a X leaseholder would de facto express permission from such leaseholder to the exclusive use of their demised parking space.
THE THIRD SCHEDULE
“5. The right for the Lessee and the tenant or occupiers of the Demised Premises and his or their employees and visitors (in common with all other persons having the like right) to go pass and re-pass at all times and for all purposes of access to and egress from the Demised Premises over and along the passageways corridors lift(s) (if any) and staircases forming part of the internal common parts of the Building in which the Demised Premises are situate
6. The right in common with all others entitled to a similar right to use (if provided) for the reasonable purpose intended the:
6.1 security door entry system and
6.2 the communal television reception system
6.3 the Roof Terrace
7. The benefit of the right to use the Cycle Storage and Refuse Storage area(s) shown on Plan no.2
8. The benefit of the right of way with or without vehicles in the case of any roads and on foot only in the case of footpaths over the new roads constructed or to be constructed between the Car Park and Avebury Boulevard as contained in Clause 13.2.9 of the Transfer but subject as therein mentioned
9. The benefit of the right to exclusive use of the Allocated Parking Space for the purpose of parking one passenger private motor vehicle or light passenger motorcar derived commercial vehicle only contained in Clause 13.2.8.1 of the Transfer but subject as therein mentioned”
THE SEVENTH SCHEDULE, PART ONE
“26. On the occasion of every assignment or transfer of the Demised Premises for the unexpired portion of the Term and in every under-lease which may be granted to insert a covenant by the assignee transferee or underlessee (as the case may be) directly with the Lessor to observe and perform the covenants conditions and obligations on the part of the Lessee appearing in this Lease other than payment of the reserved rents in the case of an under letting or under-lease which for the avoidance of all doubt shall remain to be performed by the Lessee”
THE SEVENTH SCHEDULE, PART TWO
“2. Not to use the Allocated Parking Space for any purpose other than for the purpose of parking one passenger private motor vehicle or light passenger motor car derived commercial vehicle thereon
3. Not to carry out nor allow to be carried out any mechanical or other works to motor vehicles not belonging to the Lessee on the Allocated Parking Space and not to carry out any mechanical or other works to motor vehicles belonging to the Lessee on the Allocated Parking Space save in the case of emergency
4. Not to allow or cause or permit to be allowed the deterioration of any vehicle on the Allocated Parking Space to an unreasonable condition nor to abandon any vehicle whatsoever on any part of the Allocated Parking Space and in the event of any breach of this covenant it shall be lawful for the Lessor without prejudice to its rights hereunder to arrange for the removal of such neglected or abandoned vehicle and to recover from the Lessee any costs incurred by it”
AGREEMENTS AND DECLARATIONS
“6.14. A person (a "Third Party") who is not a party to this Lease has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Lease notwithstanding that any such term may purport to confer or may be construed as conferring a benefit on such Third Party PROVIDED THAT this does not affect any right or remedy of such Third Party which exists or is available apart from that Act”
8. There are no references to the Claimant in the lease agreement. There are also no terms within the lease requiring lessees (including their underlessees and permitted parking space users such as the Defendant) to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. Therefore, 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.
9. 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.
10. On the dates of the alleged breaches, the Defendant’s vehicle was in fact parked in a different parking space (bay Z). This was because the Defendant’s Landlord had been unable to provide the bay Y permit until a visit on 22/09/2023. In the period from the beginning of the tenancy until this date, the Defendant was using an alternative permit obtained from the letting agency (X). Thus, no contract with the Claimant had either been signed referring to bay Z or their ability to enforce parking terms. In addition, ownership of a key fob and de facto expressed permission from the leaseholder of bay Z (as demonstrated through their consent for a permit being given to the Defendant on their behalf by X) demonstrates the Defendant’s right to park undisturbed in this alternative bay until the receipt of the Y permit on 22/09/2023.
11.1 As seen by the Claimant’s photographic evidence, a bay permit (of correct colour and branding) was displayed in the windscreen for the convenience of the Claimant (but not out of obligation). As the Defendant knew he would only be the temporary owner of this non-laminated permit, he did not wish to tape it to his windscreen and risk damaging it. This means the Defendant could have (on occasion) placed the permit in a manner which is not conducive for the Claimant’s enforcement team’s easy viewing of the bay number. However, in other instances the permit was placed with the number clearly visible (not out of obligation). Sound judgement would have led a reasonable person to believe it was therefore the same permit as previously displayed.
11.2 As seen by the Claimant’s photographic evidence pack, a picture of a X work permit belonging to the Defendant has been included. This indicates poor practice and levels of training from the Claimant’s enforcement team, since the presence of an additional permit does not invalidate the permit for bay Z (displayed for convenience but not out of obligation). The reason for the alleged breach is stated as “Parked Displaying A NON Valid Permit” which could imply the Claimant believes the Defendant attempted to use his work permit for X. Even if the Defendant were required to display a permit (which is contested due to ownership of a key fob and lack of an enforceable contract), the reason should have been stated as, for example, “Parked Displaying a Permit with Insufficient Clarity”.
11.3 In previous instances several residents of X have had Parking Charges issued by the Claimant for trivial purposes (e.g. sun-faded permits). This is evidenced by an open letter sent in October 2020 on behalf of X Residents Group to the Building Management Company. In some instances, these Parking Charges were overturned or significantly reduced by contacting the Claimant via the Building Management Company. In other instances Parking Charges to residents have been successfully appealed through Parking on Private Land Appeals (POPLA). Particular attention is drawn to a case from October 2020, where POPLA found in favour of a resident:
“It is a parking operator's responsibility to demonstrate to POPLA that it has issued a parking charge notice correctly and that the parking charge is therefore owed. In the present case, the appellant has stated that they are a leaseholder and have a legal entitlement to park in the space. They say that their lease makes no provision for being liable for being charged for parking in their own parking space. They explain that they dispute UKPC's right to restrict my right to park. Having reviewed the operator's evidence pack, I have seen no evidence that it has the authority. As a result of this, I am therefore unable to determine that the parking charge notice has been issued correctly. Accordingly, this appeal must be allowed. While I acknowledge the appellant has submitted further grounds of appeal in support of their case, as I have allowed this appeal for other reasons, I do not consider it necessary to consider them further.”
This case set a precedent that leaseholders and permitted users of their exclusive spaces (including the Defendant) at X enjoy the right to residential parking free-from interference from third parties such as the Claimant.
12. The Parking Charge was not paid or responded to by the Defendant within 28 days. This was not an admission of liability from the Defendant and whether the charges were responded to or not within 28 days is immaterial of whether the charges were lawfully issued in the first instance. Therefore, engaging with the Building Management Company or POPLA was not a viable route to overturn the charge. However, attempts were made to contact the Claimant through their online web form and through the Building Management Company but to no success. This demonstrates a lack of willingness on behalf of the Claimant to prevent the dispute from going to court and consuming valuable court time.
13. The Defendant relies on primacy of contract (to both of the parking spaces, bay Z and bay Y) and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents. It has been alleged by residents that the Claimant operates a policy towards its enforcement teams of paying them a commission per Parking Charge issued. This is completely counter-intuitive to a service which should add value to residents, (e.g. by protecting their spaces from being parked in by other residents and their guests), as opposed to extracting as many charges as possible from residents in their legitimately allocated parking spaces.
14. Further and in the alternative, the sign at the parking access gate refers to ‘Authorised Vehicles & Permit Holders Only', and suggests that both types of vehicles, authorised and permit holders, can use the car park. The car parking area contains allocated parking spaces demised to residents. Entry to the parking is by means of a key fob. Any vehicles parked therein are, therefore, de facto authorised to be there.
15. 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. In addition, in Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye v Beavis [2015] UKSC 67 does not apply to residential parking as in this instance.
16. The wording on signage of “NO UNAUTHORISED PARKING” implies the forbidding of parking rather than an offer to park. Clearly if there is no permission granted, then there is no offer, so this is further evidence of no contract being entered between the Claimant and the Defendant. In the case that this does indeed constitute an offer to park, it would be as if the Claimant is running the area as a public car park with both legitimate residents and tailgating trespassers offered to park at the risk of a £100 daily charge, unless the residents comply with an onerous regime to which their leases and tenancies do not oblige them to co-operate with. This would be an absurd position for residents to put themselves and the Defendant avers that this further supports that the contract between the Claimant and the Building Management Company was not devised in the interests of residents but in the interests of enriching the Claimant.
17. In the reasonable case that the only unauthorised vehicles in the car park are trespassers or residents in other resident’s spaces, the Defendant’s vehicle clearly does not fall into either of these categories through ownership of a key fob, tenancy agreement to X and de facto permission granted to the exclusive use of spaces bays Z and Y by the respective leaseholders during his tenancy. There are several similar cases to this claim, which set the precedent that this can be considered a trespass issue as opposed to a breach of contract. These include PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6 [2016] and Horizon Parking v Mr J C5GF17X2 [2016]. In all of these cases, the parking company had no standing to a claim. If a trespass were to have occurred (which the Defendant robustly denies), only the landowners (i.e. the Building Management Company or leaseholders of bays Z and Y) would be entitled to pursue a claim, not a parking company.
18. The Claimant, or their legal representatives, has added an additional sum of £120 to the original £200 parking charges, 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(s), which totalled £200 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.
19. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety. Given that the claim is based on alleged contractual parking charges of £200, already significantly inflated and mostly representing profit, as was found in Beavis, the amount claimed on the claim form is inexplicably (around £430). The Defendant avers that this inflation of the considered amount is a gross abuse of process.
20. Further and in the alternative that the court does not agree with the above, and that it is now accepted that the Defendant should have displayed the parking permit for bay Z with more clarity, the court is asked to consider that the Defendant had not been provided with his correctly allocated bay Y permit (as contractually entitled to possess, through the tenancy agreement’s Property Inventory and Schedule of Condition) on the date(s) that the Parking Charges were issued. Therefore, the defendant was unable to fulfil any requirement to display bay Y permit on those date(s). Proofs of e-mail correspondence to verify this can be made available to the court.
Statement of Truth
I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Defendant’s signature:
Date:
