Link Parking County Claim Recieved

[MulleredAfro]

Hi everyone!

A few months ago, I was slapped with a parking charge notice for parking in our flat's allocated bay (there's only around 30 bays in our gated residential compound) for 'Not clearly displaying a valid permit'. However the permit was visible on the passenger seat. They took photographs of the car in it's bay, with very angled pictures of the windows and the dash but avoiding the seat.

They issued us a ticket on our very first day but our letting agent cancelled it before it got any further.

I appealed it with Link, and unsurprisingly it was rejected. Now I have received a County Court Claim form. I have submitted my acknowledgement but need to get my defence in. Please could anyone help?

Attached are signage, claim form and what our tenancy agreement has to say about it.

Thanks in advance!

[ostell]

So your main defence is that it was displayed on your passenger seat. Take a photo to demonstrate the position it was displayed. Nothing in the sign or lease dictates where the sign is to be displayed, just that it must be displayed.

Who the heck came up with that lease? However, to your advantage it just states that you are liable for penalties or fines. What you have received is a (speculative) invoice for a breach of contract. Private companies cannot issue fines or penalties.

Your defence
Your lease gives you permission to park in an allocated bay
your permit was displayed, the signage is not specific about where
Your lease only specifies payment of fines and penalties, as an invoice from a private company this is neither of the specified items

Wait for others to add to this and post for critique before sending. You have 33 days from issue date to get the defence to the court.

[MulleredAfro]

I was wondering if anyone could pick some holes and check this defence for me please?
Also, I understand that I should send this in via email or post but do I still need to do anything with MCOL as well?

All of the thanks in advance



Claim Number XXXXXXXXXX

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.

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.

3.1 It is admitted that on [date] the Defendant's vehicle was parked at [location]
3.2 The Parking Charge Notice was appealed to the Claimant directly and was rejected on vague grounds.
3.3 The Defendant’s vehicle has parked in the allocated bay and has been since [date] up until the ticket was issued on the [date]. No other car is entitled to park in our space as each space is designated to each flat.

4. Misleading evidential photographs
4.1 The car permit was in the vehicle at the given time and will have been seen when the photos were taken. The photos whilst appearing to look thorough are misleading as they failed to photograph the passenger seat. The permit will have been seen when looking through the vehicle’s passenger window.


5 Distinguished features
5.1 This case is distinguished from that of ParkingEye Ltd v Beavis [2015] UKSC 67 in that the alleged offense took place in a residential security fenced car park with allocated marked bays for each flat where as ParkingEye Ltd v Beavis was in on a retail park owned by British Airways Pension Fund. Additionally, unlike this alleged offense Beavis was in a time constrained environment.

5.2 Furthermore, in Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye vs Beavis [2015] UKSC 67 does not apply to residential parking, and this will therefore mean that the issued Parking Charge Notice is either an unenforceable penalty (which a private company is unable to issue) or a speculative invoice.


5.3 One of the key points from the Beavis case was that the charge was necessary to deter overstaying - this is not applicable to this case. As the defendant was parking in their allocated space it is then considered that there is no legitimate interest, the charge would therefore be as previously mentioned, an unenforceable penalty or speculative invoice.



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 a specific display position of a valid parking permit.


6.1 The costs are manifestly excessive and unconscionable considering the defendant lives at the address and pays rent on the property which includes the use of the allocated parking space. The bay in question is designated to only the Defendant's home.

6.2 The Defendant has a valid permit and was parked within the lines, and the lease states that ‘resident needs a valid permit to park’.

7. The Defendant avers that the operator’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.

8. Accordingly it is denied that:
8.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
Failure to set out clearly parking terms

9. The signage specifies that a permit is displayed but the signage and lease is not specific about the exact position. The permit was in clear view when viewed from the outside of the vehicle.

10. 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.

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

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

[ostell]

3) remove mention of insurers etc. Anyone would be insured to drive if they have normal car insurance which permits driving of other cars.with permission.

[MulleredAfro]

Thanks, I submitted it on time (20th last month). I spoke to CCBC to make sure they got it, then Gladstones sent me their usual email of 'we want a paper hearing, or you have the choice to settle'.
I filled out a Directions Questionnare and sent it back within time, and was wondering when their deadline to send one in to the court is? Is it the same as my deadline?

[ostell]

Yes, you and gladstones are on the same deadlines.. Have you not received Gladstones DQ response? If not check with the court. You refuted the papaer hearing request?

[MulleredAfro]

Yes, you and gladstones are on the same deadlines.. Have you not received Gladstones DQ response? If not check with the court. You refuted the papaer hearing request?

Yep, refuted paper hearing like in the sticky.
I received their DQ response a few weeks ago in an email, but I rang the court last week and they said they hadn't recieved anything from Gladstones.

[MulleredAfro]

Hi! Just an update. I received date for hearing, which was the 31st of July. Sent in my witness statement and received Gladstone's pitiful excuse of one. Just received a letter from the court striking the claim!