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PCN Issued on Residential Parking Space CC claim issued
Pearlofwisdom
post Sat, 2 Jun 2018 - 12:24
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I have been issued with CC claim from Simon Renshaw-Smith of VCS.
It is my intention to robustly defend this claim and countersue.
My case will be in court within the next few weeks.

My case:
125 yr Lease Purchased April 2015
Residential Parking Spaces x 2 demised through lease
35 PCN's to date - all ignored by me, no court action from VCS, apart from this one.
Landowner's Agent EM Estates instruct FirstPort to maintain apartment block and common /demised land within boundary - carpark.
FirstPort engages VCS to manage car park.
VCS claim breach of Contract by conduct
ie I ignored signage.
Contract law is clear on this - A Contract cannot be lawfully upheld by Performance, nor can it assumed nor implied.
No contract exisit between me & VCS
VCS Signage cannot overide my Lease.
This claim is therefore without merit.
I would make a request to have it 'Struck Out' but I intend to Countersue


No contract exists bewteen Lessor (me) and Landowner (Lessor) to allow a third party to unilaterally change the t&c’s of my lease.
No Deed of variation of said lease exists to allow same.


Therefore VCS have no legal authority to operate on land which I own by virtue of lease.
FirstPort have no legal authority to instruct VCS to act on behalf of Lessor
This is a complete breakdown in instruction
The PCN’s are unlawful and therefore unenforceable
In essence VCS has no legal authority or proprietary interest to operate on my demised land

This mean that VCS has ‘no right to an Audience’ and herein lies the rub!
A Judge will take a dim view of having his / her time and court resources wasted by people (VCS) who use the courts in this way whom have NO legal right to do so.
The courts do not exist as an additional debt collection agency for VCS nor do they exist to Wet Nurse the likes of Simon Renshaw Smith with their scurrilous activities.

I am Countersueing using Davey V UKPC as my guide - a good read.
(DVLA information being illegally gained - £750 claim met etc)

Many thanks to anyone reading this and able to offer additonal input


Best regards
Pearl




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post Sat, 2 Jun 2018 - 12:24
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Pearlofwisdom
post Fri, 8 Jun 2018 - 14:34
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QUOTE (Eljayjay @ Fri, 8 Jun 2018 - 15:15) *
I am sorry to ask more questions, but... [/color] Please don't apologies, I have incalculable respect for your help

What was the date of the LBC/LOC? 23 April 2018

Did you keep the envelope containing the LBC/LOC? If so, is it postmarked and, if so, what is the date of the postmark?

What was the date of the claim? 29th May 2018

Do they relate to the same parking event? YES : Only date reference on POC : NO ref to date on N1SDT or vehicle Reg : No ref on either of VCS PCN number

I ask these questions because they are supposed to allow you 30 days to respond to the LBC/LOC before commencing court proceedings. It would appear they have

In addition, please state the full Particulars of Claim stated both on the claim form and in the document received today. Redact any identifying details. [color="#0000FF"]
Please see previous sent
We must have hit Add Reply almost simultaneously.

There are no particulars of claim posted.

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Pearlofwisdom
post Fri, 8 Jun 2018 - 15:18
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Currently struggling to get page 2 of POC (uploaded file to large ??)

Please bear with....


[attachment=55829:POC_version_2.jpg]
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Pearlofwisdom
post Fri, 8 Jun 2018 - 15:38
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LBC dated = 23rd April 2018
POC dated = 29th May 2018

No envelope kept from either

Both: refer to same parking event by : Date : Vehicle reg : Location of parking space
No reference of VCS PCN ticket ref on either


N1SDT : Reference to Breach of Contract only
No: Date of breach
No: Vehicle reg
No: Location



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Eljayjay
post Fri, 8 Jun 2018 - 15:39
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Did you reply to the LBC/LOC?

I presume not; however, if you did, what did you say? And what did they say in response?
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Pearlofwisdom
post Fri, 8 Jun 2018 - 15:47
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LBC reply sent 09th May 2018
Extracts of main points as follows :

• What exactly is the PCN charge for
• What are the terms of the Contract
• How was the Contract offered and accepted
• Is this charge for a) trespass b) breach c) contractual charge
• If a) or b) applies please supply a full breakdown of your loss and proprietary interest
• If c) applies please supply a VAT invoice
• Evidence of Driver
• Authority from Landowner
• Your Right to an Audience or that of any other chosen VCS Legal representative.
In summary:
You had no right to enter my Property on 12th Sept 2017. This unauthorised entry was a trespass;
The Landowner covenanted has given me uninterrupted quiet enjoyment of the Property and you have unlawfully interfered with my pre-existing rights to use and occupy the Parking Space which was demised to me by the Lease.


Cont'd


Furthermore, as a result of your actions, I have suffered damage and distress and should you continue to harass me I will seek an award of damages against you in respect of the following:

i. Tortious interference with my rights under my Lease (£167, a sum equivalent to the amount you are currently seeking to recover from me);

ii. Trespass (£167, a sum equivalent to the amount you are currently seeking to recover from me).

iii. Should you in the meantime issue further proceedings against me, I will make a counterclaim against you in the above terms. I will also seek costs against you (court fees plus my time at £35.00 per hour).

I also require you to do the following:
• Please confirm in writing that you will not continue to pursue me for payment in respect of the PCN and the PCN is to be rescinded, any continued claim will be seen as harassment and I reserve my rights under the Protection from Harassment Act 1997.
• I also require you to undertake not to enter onto the Parking Space again – whether or not the car parked in it is displaying a permit.
• I also require you to cease processing my data immediately.
• If you will not do any of these, then I reserve the right to seek damages and costs against you.

Yours faithfully


CC Claim was the next thing rec from VCS
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Eljayjay
post Fri, 8 Jun 2018 - 16:08
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I am going to start drafting a defence for you. I may be a while. In case I have any more questions for you, please view your thread from time to time.
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Pearlofwisdom
post Fri, 8 Jun 2018 - 16:23
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My highest gratitude and appreciation – Im eternally grateful for your support.

Have a great weekend

Pearl
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Eljayjay
post Sun, 10 Jun 2018 - 14:29
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Below you will find a draft defence for you to post through MCOL. Further below, you will find a draft counterclaim for you to post through MCOL at the same time.

You will need to pay a court fee to cover the counterclaim.

Before you post anything through MCOL, if you decide to pursue the counterclaim on the bases mentioned, you will need to establish the price of a day’s parking locally. You may be able to google this information (in which case print what you find so that you can include printout as an exhibit when you submit your witness statement). Alternatively, you may need to visit your nearest car park (in which case take a photo of the charges there so that you can include the photo as an exhibit when you submit your witness statement).

Please do read thoroughly both the defence and the counterclaim to check them for accuracy before posting them.

One you have posted your defence and counterclaim, there will be an exchange of notices of direction. At that stage, you will have the opportunity to name the County Court where the case will be heard. Once the case has been allocated to a particular court, you stop dealing through MCOL. The Court to which the case has been allocated will notify you of the date of the hearing. It will also issue you with instructions about what you need to do. The instructions are likely to include a date by which you must provide your witness statement and exhibits to both the Court and the Claimant. That date is usually two weeks before the hearing. When you submit your witness statement, you will also be able to submit a statement of legal arguments.

The witness statement and the statement of legal arguments provide an opportunity for you to flesh out your defence by saying what you know and what you believe respectively.

Obviously, if you have any questions on the defence, the counterclaim or the process, please do not hesitate to ask.

You may wish to await the comments of others before doing anything.




The statement of defence...


Introduction

1. I, <your full name>, of <your address> am the Defendant in this case and I make this, my statement of defence.

2. I acknowledge that I am the registered keeper of vehicle, registration number <VRN>, and that the vehicle was parked at <location> on <date of event>.

3. I do, however, deny that I owe any amount to the Claimant in relation to my vehicle being parked there on that or any other occasion.

4. Although the Claimant asserts that its cause of action is a breach of contract, I have never entered into any contract with the Claimant.

5. This case relates to land where my rights are governed by a lease,

6. The Claimant has chosen to blatantly disregard both the existence lease and my rights under it.


The Claimant’s failure to comply with the Pre-Action Protocol for Debt Claims

7. The Claimant issued a letter of claim to me on <date>.

8. I responded to the letter of claim on <date> requesting certain information from the Claimant.

9. The Pre-Action Protocol for Debt Claims makes it very clear that the Claimant should have replied to my letter within 30 days and prior to launching its formal claim, but it has never replied to my letter.

10. Having failed to comply with the Protocol, the Claimant should not have brought its claim.

11. Even at this late stage, the Claimant has not disclosed the identity of its client at <location>.

12. In addition, in its Particulars of Claim dated 29 May 2018, although the Claimant makes bald statements about its “terms and conditions”, it has not provided me with a copy of the contract containing those terms and conditions and it has not specified the particular term(s) or condition(s) which it purports me to have breached.

13. In the event of the Claimant providing further details of its Particulars of Claim, I reserve the right to amend or add to this, my statement of defence.


The Claimant’s negligence

14. The Claimant describes itself in its Particulars of Claim as “a national car park operator that provides car park management on behalf of its Clients at a number of car parks across Great Britain”.

15. 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.

16. 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.

17. 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 empowered to enter into such a contract with the Claimant.

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


The Defendant’s lease

19. Under a long-term (125-year) lease purchased by me on 15 May 2015, “The Premises”, which include not only an apartment but also an allocated parking space, have been demised to me as the lessee until a date in the next century.

20. I do, therefore, have exclusive use of the relevant land, i.e. my parking space, for the foreseeable future.

21. The vehicle was parked in full compliance with my lease on the relevant land on <date of event>.

22. My lease makes no provision allowing either any other party to it or any stranger to it, such as the Claimant, to impose regulations on my parking space or those parking in it.

23. Decisions as to whether and what such regulations might exist in relation to my parking space are matters entirely for my own discretion and prerogative.

24. I am further protected against the Claimant’s unauthorised and predatory parking scheme by ( a ) the Claimant’s lack of any third party rights in relation to my lease, ( b ) the legal principle of non-derogation from grant implied in all leases, and ( c ) the legal principle of the right to quiet enjoyment also implied in all leases.


The Claimant’s standing

25. There is nothing which compels me to enter into a contract with the Claimant for parking in my parking space.

26. I have not granted the Claimant the right to use my parking space for the purposes of its business.

27. As the parking space being part of the premises demised to me without any rights being reserved, no other person has the power to grant the right to the Claimant to use my parking space for the purposes of its business.

28. The Claimant does not, therefore, have any right to use my parking space for the purposes of its business.

29. It follows that the Claimant has no parking to offer there, i.e. for the purposes of a contract, the Claimant lacks consideration.

30. In turn, it follows that the Claimant has no grounds for charging for parking in my parking space.

31. Insofar as my parking space is concerned, the Claimant is nothing more than a serial trespasser and a nuisance without any standing at all.



The counterclaim...

1. I make this, my counterclaim, against the Claimant.

2. There are two grounds for making my counterclaim: the Claimant’s repeated trespass on my parking space; and the Claimant’s tortious interference with my lease.

3. The Claimant has been using my parking space for its business purposes since it was demised to me on 15 May 2015.

4. To the date of writing, i.e. 11 June 2018, therefore, the Claimant has made use of my parking space for the purposes of its business for a total of 1,124 days.

5. It follows that the Claimant has trespassed on my parking space for that number of days.

6. In the nearest car park available to the general public, the cost of one day’s use of a parking space is £4.

7. My 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 leasehold owner of the land.

8. I further understand 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 my parking space for one day, the Court could regard that as a reasonable amount on which to base my counterclaim.

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

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

12. My counterclaim is, therefore, for the sum of £4,496, i.e. 1,124 days at £4 per day.

13. Although that amount is based on a counterclaim for trespass alone and I believe that it would be reasonable for the Court to award me a further amount for tortious interference with my lease, I am willing to accept the sum of £4,496 in settlement of the whole of my counterclaim.

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

15. In the event that the Claimant discloses the identity of its client at the development, I reserve the right to request the Court to join that person to my counterclaim.

This post has been edited by Eljayjay: Mon, 11 Jun 2018 - 11:45
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Pearlofwisdom
post Sun, 10 Jun 2018 - 14:46
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With regards to my Counterclaim and inclusion of the MA :-

I have been trawling through historical emails and the ignominy I have been subjected to is staggering with hindsight

April 2015: I purchase property and ask for Parking Permits to adhere to regime
MA advises that there is a debt on the property account of £200 and until this is resolved/paid no permits can be released in my name. I query debt and they say that the 6 monthly service charge which is payable in advance from Jan has only been paid up to April.

I then explain that as the property has been sold the Vendor had only paid their portion up to the date of completion/exchange of contract and that unless the account is put into my name I would never be able to reconcile the account and therefore never get the permits. I ask if they will take note of my Tenants vehicle regs x 2 so they will know NOT to ticket vehicles.

MA advises that they will look into this matter.

10 PCN’s are issued in the meantime

Fast forward to June 2015: Account put into my name. Service charge paid, 2 Permits received. 1 for allocated Residents space No:20 & 1 for Visitors space
I contact MA and complain that I need 2 x Residents as apartment has 2 allocated spaces and the numbered permit does not correspond to Apartment No.
MA states I am not entitled to 2 residents spaces- only 1 and that the numerical reference is irrelevant.
I email copies of Land Reg docs clearly showing 2 spaces. MA fails to accept this and refuses to send additional permit. I contact them again and request property manager meets me to do onsite survey and get confirmation of the 2 spaces. She ignores my request.

Additional PCNs issued, one for displaying the WRONG numbered permit in numbered space.

I appeal against first few PCN’s direct to VCS – not one of them is upheld.
I am then subjected to debt letters from BW: DLC: Zenith: DCBl followed by a barrage of phone calls.

I conclude that you can’t argue with idiots as they will always beat you with experience and decide to let the matter determine itself and wait for the arrival of a CC claim…… and so here we are.

I’m of the firm opinion I have been held to ransom and deliberately denied/ given permits to allow VCS to ‘Farm’ me as a unwitting target in their unlawful revenue scam .
I have been subjected to abject misery by the MA’s ineptitude

This will all be included in my claim for Damage

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Pearlofwisdom
post Sun, 10 Jun 2018 - 14:57
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Eljayjay .......
To say that is brilliant is an understatement

I will read and read again and get it sent tomorrow.

Thank you
Thank you
& Thank you again
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ostell
post Sun, 10 Jun 2018 - 16:25
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Would it be helpful to state that the lease does not require the display of any permit and therefore any display can not be seen as an acceptance of an alleged contract but purely as an an identification aid for the parking company
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Pearlofwisdom
post Sun, 10 Jun 2018 - 16:28
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QUOTE (ostell @ Sun, 10 Jun 2018 - 17:25) *
Would it be helpful to state that the lease does not require the display of any permit and therefore any display can not be seen as an acceptance of an alleged contract but purely as an an identification aid for the parking company


Good point!

Thanks, will do
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Eljayjay
post Sun, 10 Jun 2018 - 17:51
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I have great respect for ostell. Ostell does often think of things that I have missed.

There is, however, a huge temptation to fire all ammunition at the defence stage.

What we are saying in the defence is that the Claimant has no right to be there fullstop.

In addition, unless I have missed it, the Particulars of Claim say nothing about the requirement to display a permit.

That being so, I think the matter of permits, which is really just a bit of detail, can be left until the witness statement and the statement of legal arguments.

If this has been going on since before 2015, we may need to make some amendments because we do not want your counterclaim to exceed £10,000, the maximum for a small claim. In addition, the Claimant's deal may predate your lease. That should not be a problem for you. It may, however, be a problem for the other party or parties to the lease.
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Redivi
post Sun, 10 Jun 2018 - 18:12
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That point has to be in the defence

I would put it more strongly and make clear that its display does not signify that VCS has any authority over its use of the space

The witness statement, in my view, undervalues the damages for trespass in your counter-claim

Regarding your defence to the VCS claim, I would add #33

The VCS operative knows that the vehicle is authorised because he's seen and inspected it on many occasions
From his company records and memory, he knows that it has a permit and he has no legitimate reason to enter the prperty and look into the vehicle
The demand for £100 if he does not see a permit on any particular occasion is exorbitant and unconscionable within the meaning of ParkingEye v Beavis

Regarding the value of the counter-claim for trespass :

The benefit that VCS gained when the operative stood in your space isn't the cost of a parking ticket because he stood in your space for free when he could have stood in a nearby car park
It's the £60 profit that they hoped to gain if he didn't see a permit that you were not required to display




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Pearlofwisdom
post Sun, 10 Jun 2018 - 19:21
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" In addition, the Claimant's deal may predate your lease. That should not be a problem for you. It may, however, be a problem for the other party or parties to the lease."

VCS were intially instructed by MA Oct 2014 (6months prior to purchase)

When I orginally protested to MA about the appalling conduct of VCS; the response was

“We wrote to all residents in Oct 2014 about the introduction of the scheme, if you had a problem you should have raised it then”

I asked why would they write to me in Oct 2014 when I didn’t purchase until April 2015?

- Silence.

I then requested a copy of the introduction letter and I’m still waiting for it, some 3 years on.

Eljayjay, do you see a large ££ Counterclaim ??

I'd appreciate advice as to a 'prospective' sum



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Redivi
post Sun, 10 Jun 2018 - 20:33
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QUOTE (Eljayjay @ Sun, 10 Jun 2018 - 18:51) *
There is, however, a huge temptation to fire all ammunition at the defence stage.

What we are saying in the defence is that the Claimant has no right to be there full stop.

In addition, unless I have missed it, the Particulars of Claim say nothing about the requirement to display a permit.

That being so, I think the matter of permits, which is really just a bit of detail, can be left until the witness statement and the statement of legal arguments.


That is very dangerous advice

You only have one shot at the defence and you must fire all of the ammunition from the start

If you want to amend a defence after it's been served, you must obtain the permission of the court (£255), not save it for a last minute ambush in a skeleton argument


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Eljayjay
post Sun, 10 Jun 2018 - 20:36
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I stand by my previous comment that there is no need to say anything about permits in your defence because there is no mention of them in their Particulars of Claim. It is part of the draft defence that the Claimant has made bald statements about breaching terms and conditions. You do not have to second guess what specific terms and conditions have been breached. What the defence majors on is that the Claimant has no rights whatsoever over the parking space.

You can (and will need to) expand on what you have said in your defence at the later witness statement and statement of legal arguments stage. At that time, there will be a need to say significantly more about a number of subjects, perhaps especially third party rights, non-derogation from grant and quiet enjoyment. They have been mentioned in the defence and that is sufficient for now.

Who are the parties to your lease? Clearly, there is a Lessor and there is a Lessee (i.e. you). Is that it or are there others? For example, is a management company also a party to the lease? What does your lease tell us, if anything, about the managing agents? If the lease mentions them at all, does it say who is responsible for appointing them?

When it comes to the amount of the counterclaim, it does not matter that the Claimant has made little or nothing from using your parking space for the purposes of its business. It is my understanding that what counts is simply the fact that it has made use of the space for the purposes of its business. As the counterclaim says, if the Claimant and yourself had willingly entered into negotiations about its use, it would have been entirely reasonable for you to require an amount equal to the cost of parking elsewhere locally.

So, I would say that a figure based on days times daily rate is a reasonable amount to claim; however, if that comes to more than £10,000, you may include a discount for, say, goodwill.

If you tell me when you completed the purchase of your flat and how much a day's parking is elsewhere locally, I shall gladly do the arithmetic.
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ostell
post Sun, 10 Jun 2018 - 21:24
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The PoC are embarrassing in that they do not give a a good reason for the claim so this will have to be an embarrassed defence in that the defendant does have to second guess the reasons for the claim nd address them in the defence so that there can be no problems bringing this up later. Did the original PCN mention lack of permit? If it did this is a valid reason to bring up the permit situation now.

I sort of agree that the defence should be just in answer to the particulars but the PoC is so bad it is difficult to make a sensible defence from it, hence what I have suggested. The PCN will be in their witness statement and bundle so it will appear. Could be difficult if their witness statement and bundle are last in and the defendant does not get the chace to add about the permit situation.

This post has been edited by ostell: Sun, 10 Jun 2018 - 21:31
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Pearlofwisdom
post Sun, 10 Jun 2018 - 21:36
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Lessor is a 'Property Group'
No mention of third parties in Lease
No mention of Landlords Agent in lease 'E & M Estates Management@
No mention of MA in lease

Nearest car park charges £4 per day

MA is appointed by the Lessors 'Agent' who takes care of Lease sale/property transfer requirements and to ensure each leaseholders rights are protected, they also collect ground rent.

That said Ive just done a search at Companies House on 'Lessor's' Ltd Company name
They used toi Trade under the name of 'Peveral' and so did the MA


So this now tells me Lessor and MA are one

No mention of Permit in POC
Refers only to Signage and compliance with T & C's
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Eljayjay
post Sun, 10 Jun 2018 - 21:57
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What was the date on which you completed the purchase of your flat?
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