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Large VCS CC claim for my residential space
lucere
post Thu, 30 Aug 2018 - 12:16
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Hi guys,

I have been posting on MSE and you can see the original thread here. I can post a copy of my lease and tenancy agreement but they are not searchable unfortunately

My defence deadline is on Tuesday and I'm looking for some more feedback on my statement as I believe there are users here that don't use both forums? I have also been reading Pearlofwisdom's recent thread which looks similar.

Any comments greatly appreciated! biggrin.gif


IN THE COUNTY COURT BUSINESS CENTRE

CLAIM No:

BETWEEN:

VEHICLE CONTROL SERVICES LTD (Claimant)

-and-

(Defendant)

________________________________________
DEFENCE
________________________________________

Preliminary

1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

Background

3. It is admitted that, at all material times, the Defendant was the registered keeper of the [make/model] with vehicle registration number [xxxx xxx] which is the subject of these proceedings.

4. It is admitted that, at all material times, the Defendant's vehicle was parked at [site name], in the correct parking space allocated to his apartment [bay detail].

Authority to Park and Primacy of Contract

5. Under the terms of the Defendant’s tenancy, a number of references are made to conditions of parking motor vehicles:

“7.10 To use the car parking space(s) if one forms part of the Tenancy Agreement for the parking of a private vehicle(s) at the Property only.
7.11 To park in the space allocated to the Property as set out in the Particulars of the Agreement.
7.12 To park in the garage or driveway to the Property if applicable.”

There are no terms within the tenancy requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. A copy of the tenancy agreement will be provided to the Court.

6. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the Superior Lease for [address] (of which the Defendant is bound through Section 4 of his tenancy agreement), which cannot be fettered by any alleged parking terms. The lease terms provide “the exclusive right to park one private motor vehicle on the parking space […] shown and numbered on Plan 1” without the requirement to display a parking permit. A copy of the superior lease will be provided to the Court.

7. The Defendant, at all material times, parked in accordance with the terms granted by the tenancy and superior 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 tenancy agreement or superior lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

8. Accordingly it is denied that:
8.1. there was any valid contract or agreement between the Defendant or and the Claimant
8.2. there was any obligation (at all) to display a permit; and
8.3. the Claimant has suffered loss or damage or that there is any 'legitimate interest' or other lawful basis to pursue a 'contractual charge' claim. In all respects, the case of Parking Eye Ltd v Beavis [2015] UKSC 67 is distinguished.

9. 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.

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

STATEMENT OF TRUTH
The defendant believes that the facts stated in the defence are true.


Signed:


Date:
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post Thu, 30 Aug 2018 - 12:16
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Eljayjay
post Thu, 30 Aug 2018 - 12:36
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If the lease and tenancy agreement are PDFs, post them. If they are not PDFs, get them scanned as PDFs and then post them.

Someone - I think it was whjohnson - made some suggestions how to post large documents on Lynne R's thread.

I presume that you received a letter of claim before you received the formal claim. Did you reply to it? If you did, what did you say?

If your landlord is on your side (and, having had a quick look at MSE, it appears that s/he is), then the legal principle of non-derogation from grant probably applies provided that your landlord has an allocated parking space.

See the bottom of my post last night on karenep's thread for an explanation of the principle of non-derogation from grant.
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lucere
post Thu, 30 Aug 2018 - 12:57
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QUOTE (Eljayjay @ Thu, 30 Aug 2018 - 13:36) *
If the lease and tenancy agreement are PDFs, post them. If they are not PDFs, get them scanned as PDFs and then post them.

Someone - I think it was whjohnson - made some suggestions how to post large documents on Lynne R's thread.

I presume that you received a letter of claim before you received the formal claim. Did you reply to it? If you did, what did you say?

If your landlord is on your side (and, having had a quick look at MSE, it appears that s/he is), then the legal principle of non-derogation from grant probably applies provided that your landlord has an allocated parking space.

See the bottom of my post last night on karenep's thread for an explanation of the principle of non-derogation from grant.


Thank you, here are links the lease and tenancy valid for 30 days (You need to click 'slow download'):

Tenancy Agreement
Lease

Unfortunately I ignored the Letter before Claim so there was no response to that sad.gif

My landlord is currently trying to contact the management company to cancel the court action but as the deadline is approaching I need to make sure the defence is ready – I don't know whether he will succeed.

I'll have a look for karenep's thread!
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Eljayjay
post Thu, 30 Aug 2018 - 16:20
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Presumably, the parking operator has not had a presence at the site for the whole of the time when you have resided there.

Do you know when they started their operations there? Do you know the cost of a day's parking at the nearest car park available to the general public?
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lucere
post Thu, 30 Aug 2018 - 16:32
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QUOTE (Eljayjay @ Thu, 30 Aug 2018 - 17:20) *
Presumably, the parking operator has not had a presence at the site for the whole of the time when you have resided there.

Do you know when they started their operations there? Do you know the cost of a day's parking at the nearest car park available to the general public?


That's right. There was no PPC for the first two years I've lived here and then a different company before VCS. I would think they started around the time I got my first ticket – 30th September 2017. There is a car park right across the road that costs £4/day.

This post has been edited by lucere: Thu, 30 Aug 2018 - 16:33
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Eljayjay
post Thu, 30 Aug 2018 - 22:06
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Here is a draft statement of defence for you.

Obviously, read it thoroughly to get your head around what it says and to check it for accuracy.

By all means, merge into it anything in in your draft. And, of course, top it to show the claim number, the Court, the parties and hearing date just like your draft. After making any changes, ensure that the paragraph numbering is correct.

One of the problems that you may have is that VCS may discontinue its claim at the last possible moment. That would leave you dangling, wondering whether or not they will hit you with more claims in the future.

To avoid that, you may wish to launch a counterclaim for tortious interference with your tenancy agreement and trespass in your rented parking space. If your landlord would be willing to join you in the counterclaim, that would be good.

I shall post a suggested counterclaim soon.

The defence statement...



INTRODUCTION

1. The Defendant has rented an apartment from its leasehold owner since <xx xxxx xxxx>. The Defendant’s lease has a long term not expiring until the year 2046.

2. The Defendant acknowledges that she is the registered keeper of vehicle, registration number <VRN>, and that the vehicle was parked at <location> on <date of event>.

3. Although the Claimant asserts that its cause of action is a breach of contract, the Defendant has never entered into any contract with the Claimant.

4. This case relates to land where the Defendant’s rights are governed by the Defendant’s tenancy agreement and by the apartment’s lease.

5. The Claimant has chosen blatantly to disregard both the existence of the Defendant’s tenancy agreement and the apartment’s lease and the Defendant’s rights thereunder.


THE CLAIMANT’S NEGLIGENCE

6. The Claimant is a well-known parking operator with wide experience in the field.

7. With such wide experience of parking matters, it is reasonable to expect the Claimant to know that, for a parking scheme to be valid, a contract needs to exist between itself and a person who (a) is either the owner or occupier of the land or authorised under or by virtue of arrangements made by the owner or occupier of the land and (b) has power to override any pre-existing contrary contractual conditions applying to the land.

8. The Claimant has, however, acted negligently by failing to establish the credentials of the other party to its parking contract, whoever that other party may be.

9. If the Claimant had acted with skill, care and diligence, it would have realised that the other party to its contract to manage parking on the relevant land, whoever it may be, is not empowered to enter into such a contract with the Claimant.

10. If the Claimant had acted with skill, care and diligence, it would have detected that the land is subject to pre-existing terms and conditions which have primacy of contract over the Claimant’s fatally flawed arrangements.


THE DEFENDANT’S STANDING

11. In the Defendant’s agreement with his landlord (i.e. the leasehold owner of the apartment), the Defendant has been granted by his landlord the right to use the landlord’s allocated parking space, the exclusive parking rights to which have been granted to the Defendant’s landlord by the landlord’s lease.

12. The Defendant’s agreement with his landlord contains no requirement to display a parking permit when using the landlord’s allocated parking space.

13. The Defendant’s agreement with his landlord contains no requirement to pay parking charges when using the landlord’s allocated parking space the demised parking space is used.

14. By the landlord’s lease, the landlord is not obliged to display a parking permit nor to require any tenant to display a parking permit when the allocated parking space is used.

15. The vehicle mentioned in the particulars of claim was parked in the allocated parking space when one of the Claimant’s operative affixed a parking charge notice to it. The vehicle was parked in full compliance with the Defendant’s tenancy agreement and with his landlord’s lease.

16. The Defendant’s tenancy agreement dictates the amounts payable to the landlord on an ongoing basis by the Defendant and those amounts include all amounts due for parking. The tenancy agreement does not require parking charges to be paid to a stranger to the tenancy agreement.

17. The Defendant’s landlord is protected against the Claimant’s unauthorised use of the allocated parking space for the purposes of its business and its predatory parking scheme by (1) the Claimant’s lack of any third party rights in relation to the lease, (2) the legal principle of non-derogation from grant implied in all leases, and (3) the legal principle of the right to quiet enjoyment also implied in all leases.


THE PRINCIPLE OF NON-DEROGATION FROM GRANT

18. The principle of non-derogation from grant was summarised by Lord Denning, Master of the Rolls, in Molton Builders Ltd v City of Westminster (1975) (30 P&CR 182, at p 186). The broad principle expounded by Lord Denning was that “…if one man agrees to confer a particular benefit on another, he must not do anything which substantially deprives the other of the enjoyment of that benefit: because that would be to take away with one hand what is given with the other…”.

19. Lord Denning’s words are particularly apt in many parking cases involving leasehold properties with allocated parking spaces. If Lord Denning had been deciding such a case, he may have changed his words to say “if a freeholder agrees to confer the exclusive right to park in an allocated parking space on a leaseholder, the freeholder must not then enter into an arrangement allowing a parking operator to rent out the space to any Tom, Dick or Harry at an exorbitant charge for the purposes of the parking operator’s business because that would not just substantially deprive, it would entirely deprive the leaseholder of the enjoyment of that benefit in two ways: the leaseholder, who would have paid a higher purchase price for a property with a parking space, would have been deprived of the exclusive use of that space; and he would be treated no differently to Tom, Dick or Harry insofar as the parking company’s terms are concerned”.

20. It is, of course, perverse that a private car park intended for the exclusive use of a defined group should be turned into a public car park where, according to the parking operator’s parking scheme, Tom, Dick and Harry can now park on terms no different from those available to that defined group.


THE LESSOR’S STANDING

21. The relationship between the Defendant’s landlord and the Lessor is governed directly by the lease, not via any contract with the Claimant.

22. The Lessor has granted the Defendant’s landlord the exclusive right to use the parking space. The Defendant’s landlord has devolved that right to the Defendant

23. The lease does not permit the Lessor to contract with a third party, such as the claimant, to use the parking space for the purposes of its business. Clearly, any attempt to do so would be contrary to the legal principle of non-derogation from grant.

24. In any event, the lease does not confer any power to the Lessor to impose any additional rules or regulations about parking.

25. The Defendant has no contract with the Lessor and does not, therefore, have any direct obligation to the Landlord.

26 If the Defendant had breached any term or condition of his tenancy agreement, which is denied, that would be a matter for the Defendant and his landlord to resolve.

27. It may be that any breach of the tenancy agreement by the Defendant may result in his landlord being in breach of his lease; however, in that event, the Lessor’s remedy would be to seek damages, not a parking charge, from the Defendant’s landlord and/or to seek an injunction ordering the Defendant’s landlord.

28. Consequently, neither the Lessor nor its agents, if any, have any standing in relation to the claim.

29. Furthermore, the Lessor has covenanted “That the Lessee paying all monies payable hereunder and performing and observing the covenants conditions and agreements herein contained and on to his part be performed shall peaceably hold and enjoy the Apartment during the Term hereby granted without any interruption by the Lessor or any person rightfully claiming under or in trust for it”.

30. The Defendant is confident that his landlord, the Lessee, has met and will continue to meet the Lessee’s abovementioned obligations. The Defendant being harassed to the point of being taken to Court over non-payment of a parking charge, which both the Defendant and his landlord regard as being not only invalid but also exorbitant and disproportionate, is hardly likely to smooth the way to peaceful enjoyment of his property by the Lessee.


THE COMPANY’S STANDING

31. Another party to the lease is a management company known as the “Company”. The Company is not the owner or the occupier of the allocated parking space and, in consequence, is not endowed with the powers usually exercised by an owner or occupier.

32. The relationship between the Defendant’s landlord and the Company is governed directly by the lease, not via any contract with the Claimant.

33. The lease confers no right or obligation on the Company insofar as parking is concerned.

34. If it is the Company which has entered into a parking contract with the Claimant, the question is why? If the Defendant arrives home to find a trespassing vehicle parked in the allocated parking space, it should be of no concern to the Company. Furthermore, the parking scheme seeks neither to prevent nor remedy that situation. Between them, the Company and the Claimant will not move a trespassing vehicle from an allocated parking space. Instead, the Claimant would simply affix a parking ticket to the vehicle (often not until the early hours of the following morning). If a parking charge is received by the Claimant, the Company does not insist that the charge or a portion of it is paid to the lessee to compensate him/her for the use of the parking space by the Claimant or to the resident to compensate him/her for the cost and inconvenience of having to park elsewhere. The parking charge is simply pocketed by the Claimant, perhaps with a commission being paid to the Company.

35. The lease does state that “The Company may at any time or times during the Term in the interest of good estate management impose such regulations of general application regarding the Development as it may in its reasonable discretion think fit in addition to or in place of the Regulations (but so that any such regulations shall not conflict with this Lease) and the Company shall have power In its reasonable discretion to revoke amend or add to such regulations or any additions thereto”.

36. Instead of requiring residents to display parking permits, it would be in the interest of better estate management to prevent trespassers using the car park, perhaps by installing card- or PIN-operated barriers. In the event that was not possible, a whitelist of vehicles allowed to use the parking spaces would obviate any real need for parking permits.

37. The imposition of a ticketing and charging parking regime to the common areas shared by residents may be “of general application regarding the Development”, but applying such an arrangement to individual allocated parking spaces is not. It would be akin to the Company imposing regulations demanding that only specific makes and models of car are parked in the spaces or that residents must display permits on the furniture in their apartments.

38. In addition, charging exorbitant amounts for parking, when the price for parking was included in the purchase price of the lease, cannot be claimed to be the Company exercising its reasonable discretion.

39. Furthermore, insofar as whether regulations imposing a ticketing and charging parking regime on residents would or would not “conflict with this Lease” is concerned, as the lease makes no provision for either parking permits and, particularly, parking charges, it follows that the regulations and the lease would conflict with each other.

40. If the Company has imposed any such regulations in accordance with the above clause, neither the Defendant’s landlord nor the Defendant has ever been presented with a copy of those regulations.

41. The Defendant has no contract with the Company and does not, therefore, have any direct obligation to the Company.

42 If the Defendant had breached any term or condition of his tenancy agreement, which is denied, that would be a matter for the Defendant and his landlord to resolve.

43. It may be that any breach of the tenancy agreement by the Defendant may result in his landlord being in breach of his lease; however, in that event, the Company’s remedy would be to seek damages, not a parking charge, from the Defendant’s landlord and/or to seek an injunction ordering the Defendant’s landlord.

44. Consequently, neither the Company nor its agents, if any, have any standing in relation to the claim.


THE CLAIMANT’S STANDING

45. There is nothing in the lease or elsewhere which compels the Defendant’s landlord or, therefore, the Defendant to enter into a contract with the Claimant, who is a stranger to the lease, for parking or, indeed, anything else.

46. Insofar as the allocated parking space is concerned, the intention of the lease was to provide a parking space for the exclusive use of the Defendant’s landlord and his tenants.

47. The parties to the lease had no intention to allow a stranger to it, i.e. the Claimant, to use the Lessee’s allocated parking spaces for the purposes of the Claimant’s business.

48. It is perverse that the Claimant should seek to manage parking in a private car park by making parking available to the general public (albeit at exorbitant cost).

49. The Claimant cannot derive any right to use the allocated parking spaces for the purposes of its business from any of the parties to it except the Defendant’s landlord.

50. It follows that the Claimant has no parking to offer and, for the purposes of a contract, the Claimant lacks consideration.

51. In turn, it follows that the Claimant has no grounds for charging the Defendant or the Defendant’s landlord for use of the allocated parking space.

52. Insofar as the Lessee’s allocated parking space is concerned, the Claimant is nothing more than a serial trespasser and nuisance without any standing at all.


PUTTING THE CLAIMANT TO STRICT PROOF

53. The Defendant has always regarded the Claimant’s parking scheme to be a parking scam as, in its correspondence, the Claimant has always made bald statements, as opposed to cogent arguments, about its right to operate a parking scheme where the Defendant resides.

54. In these circumstances, the Defendant submits that the Claimant should be obliged by the Court to provide full particulars of claim and the following information and documents prior to the hearing to support its claim:-

55. <tab> a full explanation from the Claimant as to how it believes that the person who countersigned its parking contract had the right to permit the Claimant to use the allocated parking space, land to which the parking rights had been granted to the Lessee, for the purposes of its parking business and to charge me for using the land;

56. <tab> the parking agreement between the Claimant and the person who countersigned parking contract enabling the ticketing and charging regime to be introduced;

57. <tab> the site plan provided by the Claimant to its accredited trade association;

58. <tab> the accredited trade association’s code of practice to which the Claimant claims to adhere;

59. <tab> evidence that signage meeting the requirements of that code of practice and also meeting the standards mentioned in the Parking Eye v Beavis judgement in terms of positioning, size of signs, size of font, height at which displayed, is present in the allocated parking space which is, of course, subject to an individual lease which distinguishes it from the other parking spaces in the car park;

60. <tab> as a lease exists, if the Claimant believes that the lease contains express provision to allow it to operate a parking scheme on my land, a note of the specific clauses in the lease applicable to this situation;

61. <tab> as a lease exists, if the Claimant believes that any rules or regulations have been made in accordance with its provisions to allow it to operate a parking scheme on my land:-

62. <tab><tab> (a) a copy of those rules or regulations duly signed, etc. by the person(s) who made them; and

63. <tab><tab> (b) a note of the specific clauses in the lease in accordance with which those rules or regulations were made;

64. <tab> as a lease exists and it granted individual rights to park on the land to the Lessee, a copy of the instrument which either transferred those individual rights from the Lessee to the Claimant or transferred a share of those individual rights from the Lessee to the Claimant;

65. <tab> as a lease exists, if the Claimant believes that its terms permit third parties, e.g. the Claimant, to enforce the lease’s terms in accordance with the Contracts (Rights of Third Parties) Act 1999, a note of the specific clause(s) in the lease applicable to this situation;

66. <tab> as a lease exists, if the Claimant does not believe that its terms permit third parties, e.g. the Claimant, to enforce the lease’s terms in accordance with the Contracts (Rights of Third Parties) Act 1999, a note explaining how the Claimant has concluded that it has acquired such a right;

67. <tab> as a lease exists, if the Claimant’s parking scheme has not been introduced in accordance with the lease’s provisions, a note explaining how the Claimant has concluded that its alleged parking contract with the person who countersigned the parking contract (enabling the ticketing and charging regime to be introduced) and the alleged parking contract(s) with driver(s) parking on in the allocated parking space have acquired primacy of contract over the lease;

68. <tab> notes giving details of the due diligence process undertaken by the Claimant and the person who countersigned its parking contract to ensure that not only that contract but also the purported contract(s) between the Claimant and driver(s) parking in the allocated parking space met the “Implied term about care and skill” requirement contained in the Supply of Goods and Services Act 1982;

69. <tab> a note giving the Claimant’s explanation as to how the current ticketing and charging regime accords with the legal principle of non-derogation from grant implied in all leases;

70. <tab> a note giving the Claimant’s explanation as to how the current parking regime with its exorbitant parking charges and threats of court action against lessees using their own land accords with the legal principle of quiet enjoyment implied in all leases.



I, <your name>, believe that the facts stated in this statement of defence are true.


Signature: <your signature>

Date: <date signed>

This post has been edited by Eljayjay: Thu, 30 Aug 2018 - 22:36
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Eljayjay
post Thu, 30 Aug 2018 - 22:44
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A draft counterclaim follows.

When I said “To avoid that” in my previous post, I should perhaps have explained that, if you launch a counterclaim, the hearing must go ahead regardless of whether or not VCS discontinue its claim.

The reason why it would be good if your landlord were to join you in the counterclaim is that, as the Lessee, his rights come directly to him from his lease and he may, therefore, carry more weight than you.

A counterclaim for £1,000.01 to £1,500.00 involves a court fee of £70 or £80 depending on whether it is made online or by paper form.

As your defence will far exceed the limit imposed by MCOL, you will need to type it out, sign it, scan it, then email it to CCBC – check the email address by ringing CCBC if necessary. Put “see the attachment to my email of <date>” in the MCOL defence box. Make sure your emails’ heading is along the lines “Claim No. <reference>: Defence of <YourName>” and give the attachment a similar name. I think the counterclaim will fit MCOL; however, if it does not, email that too.

You will need to send your defence to VCS too. Use first class post, hand it in at a Post Office counter and get a free certificate of posting. Do the same for the counterclaim if it does not fit MCOL.

If you require clarification of anything, please do not hesitate to let me know.



In the County Court at <location of court>


Claim No. <claim number>


Claimant: <name of parking company>


Defendant: <your name>


Counterclaim by the Defendant


1. I, <your name> of <your address>, the Defendant in this case, make this, my counterclaim, against the Claimant.

2. If, before the Claimant introduced its parking scheme, it had bothered to use skill, care and diligence to make enquiries through the Land Registry to find what pre-existing terms applied to the land, the Claimant would have realised that it needed to negotiate with and obtain agreement from the Defendant for the parking scheme to apply in the Defendant’s rented parking space.

3. The Claimant has been using the Defendant’s rented parking space for its business purposes since, at the latest, 30 September 2017 i.e. the date on which the Claimant affixed the first of many parking tickets to the Defendant’s vehicle.

4. To the date of writing, the Claimant has made use of the Defendant’s demised parking space for the purposes of its business for roughly 330 days.

5. It follows that the Claimant has trespassed on the Defendant’s rented parking space for that number of days.

6. In local car parks available to the general public, the cost of one day’s use of a parking space can be obtained for £4.

7. The Defendant’s understanding is that, under Common Law, insofar as trespass is concerned, the Court is required to assume a hypothetical negotiation between a willing and reasonable person in the position of the trespasser, i.e. the Claimant, and a willing and reasonable person in my own position as the occupier of the land.

8. The Defendant further understands that the appropriate measure of damages for trespass is the price which such persons would have negotiated as the reasonable price payable for the relevant right of user, or the sum of money which might reasonably have been demanded as a quid pro quo for permitting the trespass.

9. As the Claimant deems £100 to be a reasonable charge for the use of the Defendant’s parking space for one day, the Court could regard that as a reasonable amount on which to base my counterclaim.

10. Frankly, however, the Defendant believes £100 for one day’s use of a parking space to be an exorbitant amount, not a reasonable amount.

11. Instead, the Defendant regards the very much lower amount of £4, which is cost of one day’s use of a parking space available elsewhere locally as being much more reasonable figure on which to base the counterclaim.

12. The Defendant’s counterclaim is, therefore, for the sum of £1,320, i.e. 330 days at £4 per day.

13. Although that amount is based on a counterclaim for trespass alone and the Defendant believes that it would be reasonable for the Court to award a further amount for tortious interference with the Defendant’s tenancy agreement, the Defendant seeks the sum of £1,320 in settlement of the whole of the counterclaim.

14. In addition to agreeing to the counterclaim, the Defendant would ask the Court to order the Claimant to cease and desist from its activities in relation to the Defendant’s parking space.


I, <your name>, believe that the facts stated in this counterclaim are true.


Signature: <your signature>

Date: <date signed>

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lucere
post Sun, 2 Sep 2018 - 15:44
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QUOTE (Eljayjay @ Thu, 30 Aug 2018 - 23:44) *
A draft counterclaim follows.

When I said “To avoid that” in my previous post, I should perhaps have explained that, if you launch a counterclaim, the hearing must go ahead regardless of whether or not VCS discontinue its claim.

The reason why it would be good if your landlord were to join you in the counterclaim is that, as the Lessee, his rights come directly to him from his lease and he may, therefore, carry more weight than you.

A counterclaim for £1,000.01 to £1,500.00 involves a court fee of £70 or £80 depending on whether it is made online or by paper form.

As your defence will far exceed the limit imposed by MCOL, you will need to type it out, sign it, scan it, then email it to CCBC – check the email address by ringing CCBC if necessary. Put “see the attachment to my email of <date>” in the MCOL defence box. Make sure your emails’ heading is along the lines “Claim No. <reference>: Defence of <YourName>” and give the attachment a similar name. I think the counterclaim will fit MCOL; however, if it does not, email that too.

You will need to send your defence to VCS too. Use first class post, hand it in at a Post Office counter and get a free certificate of posting. Do the same for the counterclaim if it does not fit MCOL.

If you require clarification of anything, please do not hesitate to let me know.


Thank you so much for your advice, and the defence and counterclaim drafts Eljayjay, that is really kind of you!

I wanted to ask if it's likely I'll actually be awarded the sum in the counterclaim, or is it more of a tactic to make sure the issue is resolved and it doesn't happen again? I'm not sure I can afford the court fee at the moment and I think I might prefer it if they discontinue and there is no further hassle..

My landlord lives in Ireland, would he need to do anything other than just give his consent to join the counterclaim? Would he need to sign the counterclaim or appear at a hearing, for example? I'm not sure he'd be able to do that..

Also, on MCOL it says you must state in the defence that you intend to submit a counterclaim. Would this just go at the end?
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kommando
post Sun, 2 Sep 2018 - 16:23
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If they discontinue then they can restart any time in the next 6 years after the PCN issue date, if you have moved they get a default CCJ.

Reduce the counterclaim to just below the top level of the fee you can afford, the lowest is a £25 fee.

Fees To Start The Claim
The fees to issue a claim for money, (as of 2018) are as follows:

Claim Value Standard Online

up to £300 £35 £25

£300.01 – £500 £50 £35

£500.01 – £1,000 £70 £60

£1,000.01 – £1,500 £80 £70
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Eljayjay
post Sun, 2 Sep 2018 - 18:43
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As a minimum, you would need a witness statement from your landlord essentially saying that, insofar as he is concerned, from what he has read in his lease, the parking operator has no right to use his allocated parking space for the purposes of its business and he does, therefore, regard the parking operator as a trespasser.

This would be extremely useful for your case regardless of whether or not you make a counterclaim.

As kommando implies, a counterclaim for some amount would be a good idea to ensure that the case is heard and stops dangling over your head.
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lucere
post Sun, 2 Sep 2018 - 21:53
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Thanks guys! How exactly would I add my Landlord to the counterclaim at this stage? Documents need to be sent tomorrow (Monday). I will ask his permission, but do I just need to write his name next to mine as the defendants? Or does this need to be on both defence statement and counterclaim?

This post has been edited by lucere: Sun, 2 Sep 2018 - 21:53
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Eljayjay
post Sun, 2 Sep 2018 - 22:07
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I suspect the easiest way would be to ask your landlord to launch a separate claim for trespass and then ask for the two cases to be heard together...

...but someone else may have a better idea.

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lucere
post Mon, 3 Sep 2018 - 13:30
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Update: I've now filed my defence by email and completed the MCOL defence process including the counterclaim for £1320. I will call them tomorrow to check my defence was received and that it will be added to my claim
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The Rookie
post Tue, 4 Sep 2018 - 04:08
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Why £1320?


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 8-0 PPC's
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ostell
post Tue, 4 Sep 2018 - 06:37
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QUOTE (The Rookie @ Tue, 4 Sep 2018 - 05:08) *
Why £1320?


Post #7
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nosferatu1001
post Tue, 4 Sep 2018 - 09:04
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Did you pay the filing fee?
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lucere
post Tue, 4 Sep 2018 - 22:00
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QUOTE (nosferatu1001 @ Tue, 4 Sep 2018 - 10:04) *
Did you pay the filing fee?


Yes, £70 online - would there be any opportunity to claim this back as a cost?
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SchoolRunMum
post Tue, 4 Sep 2018 - 22:25
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Yes - your counter claim sum should have included it.
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nosferatu1001
post Wed, 5 Sep 2018 - 07:42
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Even if you forgot it, as it is a fixed court cost you can ask for it at the end - bearing in mind if they discontniiue YOU will have to pay the hearing fee as well, and that would also get added on if you win.
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lucere
post Tue, 23 Oct 2018 - 21:11
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Hi there, an update on my situation:

Directions questionnaires were exchanged and the claim was assigned to my local CC. It appears, however, that was all the paperwork that VCS could manage, because the claim was stayed in mid-September ("Claim stayed until Claimant files a copy of the Particulars of Claim served on the Defendant and a copy of its reply and defence to counterclaim").

I received another order last week informing me that the claim will be struck out unless they file the above paperwork by 31st October!

Is it common for VCS to essentially ignore their own court proceedings?? I believe VCS can issue a new claim in the future if this one is struck out? What would be the general advice at this point?
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