bwlegal/MCOL Options

[lombardo8]

Hi all

I want to provide an overview of the situation to see if there is a chance of success if this goes to court. If there is, I will use templates in the forum to draft a defence.

• I moved into a new development on 18 September and my rent contract starts on that day
• My landlord (A big housing organisation) had applied for a permit for me long before I moved in
• There are designated marked bays for residents
• There was no parking permit available for me on the day of the move
• On the day in between trips moving stuff from my old house a ticket is placed on my car
• The driver did not park in my designated bay. The driver parked in an area that had no yellow lines
• I emailed Link appeals explaining the situation
• They refused my appeal
• I didn't appeal to IAS
• I have mostly ignored letters from Link and bwlegal
• I have had a few conversations with them and haven't accepted anything
• I have now received claim form from County Court
• I have acknowledged service and I am now ready to file a defence

This post has been edited by lombardo8: Thu, 15 Aug 2019 - 08:36

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[nosferatu1001]

Date of issue please

Did you ack online? Yes or No.

Why did the driver park outside of the designated bay? Was it due to moving items in and it was closer than the space?

EXACTLY WHAT does your AST / LEase / Rental agreement say about parking or use of communal spaces etc? Exactly WHAT do signs say?

Yellow lines have no inherent meaning on private land, but that means that their absence also has no inherent meaning - you cant jsut assume its ok to park.

This post has been edited by nosferatu1001: Thu, 15 Aug 2019 - 08:34

[Sheffield Dave]

Was the driver parked outside the designated bay only for the purposes of loading/unloading, and not parked for longer than was necessary for the loading?

[lombardo8]

Date of issue please

Did you ack online? Yes or No.

Why did the driver park outside of the designated bay? Was it due to moving items in and it was closer than the space?

EXACTLY WHAT does your AST / LEase / Rental agreement say about parking or use of communal spaces etc? Exactly WHAT do signs say?

Yellow lines have no inherent meaning on private land, but that means that their absence also has no inherent meaning - you cant jsut assume its ok to park.

Did you ack online? Yes or No. = Yes

Why did the driver park outside of the designated bay? Was it due to moving items in and it was closer than the space? = Driver assumed parking in area with no markings was better than parking in a bay without a permit

EXACTLY WHAT does your AST / LEase / Rental agreement say about parking or use of communal spaces etc? Exactly WHAT do signs say? = I will check when I get home

Was the driver parked outside the designated bay only for the purposes of loading/unloading, and not parked for longer than was necessary for the loading?

Was the driver parked outside the designated bay only for the purposes of loading/unloading, and not parked for longer than was necessary for the loading? = Driver was parked longer than loading as we were in the house arranging stuff. The truth is driver will have had no other option as there is no unrestricted parking for miles and I had moved into the property so car would have remained there anyway.

[lombardo8]

Can anyone help review this please. thanks

1. The claimant has not specified on their claim form whether their claim is for a contractual fee (consideration) or for breach of contract. If the claim is for a contractual fee, this is disputed as the contract would require offer, acceptance and consideration both ways. There is no consideration from PPM to the motorist. The car park is free, and even if it were not, Parking & property management does not own the land in question and the gift of parking is not theirs to provide.

2. The registered keeper is the tenant of a flat on the land

3. The claimant did not provide the registered keeper with a parking permit despite applications from the registered keepers landlord and the registered keeper himself. (I have evidence of this. multiple requests from landlord and myself and claims from Link parking that permit had been sent.)

4. The registered keeper’s tenancy agreement commenced on 17 September and he moved into the flat on 18 September 2018

5. The driver was not parked at the time of the alleged contravention on 18 September 2018 but was in the process of unloading property into the flat

6. The claimant did not display clear signs within the site that were capable of being read and/or form a contract as drivers can enter the car park without seeing the sign due the lack of prominent signage at the entrance of the parking area. The signs within the car park are difficult to see or read inside the car. This is an unfair contract, not agreed by the driver and contrary to The Unfair Terms in Consumer Contracts Regulations (2015).
(ii)The signs may have been obstructed by another parked vehicle and not prominent on site/around the areas in question. Thus, the necessary elements of offer and acceptance to form a contract were not present.
(ii) The signage did not meet the British Parking Association (BPA) code of practice or the independent Parking Committee (IPC) code of practice. Therefore no contract has been formed with the driver and the notice does not provide the adequate notice of the parking charge which is mandatory under Schedule 4 of the POFA.
(iii) The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship and the ticket was issued illegally. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.
(iv) I would also like to draw your attention to Link Parking v Mr L C9GF5875 [2016] where it was found that there was no entrance sign at a residential site and as a result the case was dismissed.
(vi) The claimant is put to strict proof that at the time of the alleged event, they had both advertisement consent and the permission from the site owner to display the signs.

7. The defendant neither admits nor denies that he was the driver. It remains for the claimant to prove its case. Nevertheless, Parking & Property Management (PPM) have pursued the Defendant on the basis of Keeper Liability (under POFA 2012).

8. There was no contract between myself the registered keeper and the parking company so how can I agree to the terms &conditions of paying the amount of 160 pounds.

9. The claimant is not the land owner of the car park/premises. The damages should then be the land owner’s decision to sue for damages or trespass.

10. The Claimant cannot recover additional charges as the Defendant has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as 'legal expenses'. These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

11. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-
(i) The Claimant has no commercial justification
(ii) The Claimant did not follow the IPC or BPA Code of Practice
(iii) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
(iv) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.

12. The Claimant's solicitors (bwlegal) are known to be a serial issuer of tens of thousands of automated generic claims similar to this one (so called ‘robo claims’), with no due diligence, no scrutiny of details, or even checking for a valid Cause of Action. HMCS have reported identifying thousands of similar poorly pleaded claims, which are routinely dismissed by District Judges sitting in this Court and others throughout England & Wales.

[Sheffield Dave]

That defence reads as a random collection of thoughts, not as a proper defence.

A defence is a reply to the claim form. A claim form should consist of a number of bald assertions (without evidence or proof) by the claimant ("the defendant was the driver", "the driver should have seen the clear signs", "the driver parked", "the driver entered into a contract" etc) which collectively form a legal rationale of why the claimant is owed money. Later they will supply the evidence and arguments to show that the claims are true, and that they are entitled to their pound of flash.

Your defence should be a reply to each of those claims; for each one either: admitting it; saying its not in your knowledge and up to the claimant to prove; or denying it, in which case you should, where relevant, provide a "counter" claim to the claim point.

When the claim and defence are put before judge, they represent two different versions of reality. Together, they allow the judge to see what the court case is about, and what the areas of disagreement are. Later, both sides supply witness statements, evidence, and argument, and allow the judge to decide (on balance of probabilities) which set of claims most closely match reality and so whether there's a debt owed.

[lombardo8]

That defence reads as a random collection of thoughts, not as a proper defence.

A defence is a reply to the claim form. A claim form should consist of a number of bald assertions (without evidence or proof) by the claimant ("the defendant was the driver", "the driver should have seen the clear signs", "the driver parked", "the driver entered into a contract" etc) which collectively form a legal rationale of why the claimant is owed money. Later they will supply the evidence and arguments to show that the claims are true, and that they are entitled to their pound of flash.

Your defence should be a reply to each of those claims; for each one either: admitting it; saying its not in your knowledge and up to the claimant to prove; or denying it, in which case you should, where relevant, provide a "counter" claim to the claim point.

When the claim and defence are put before judge, they represent two different versions of reality. Together, they allow the judge to see what the court case is about, and what the areas of disagreement are. Later, both sides supply witness statements, evidence, and argument, and allow the judge to decide (on balance of probabilities) which set of claims most closely match reality and so whether there's a debt owed.

Thanks. I'll edit.

[lombardo8]

Response 1 and 2 are direct replies to the claims in the claim form. The other responses are to provide context.

1. The defendant denies that a parking contravention occurred on 18 September 2018 at XX Gold Street, Mill Hill as at the time of the alleged contravention, the driver of the car was unloading property during a house move

2. The defendant denies that there is any outstanding liability or contractual costs due to Link parking as there was no contract between myself the registered keeper and the parking company.

3. The defendant is the registered keeper of AB123CDE

4. The defendant is the tenant of a flat at XX Gold Street, Mill Hill

5. The claimant did not provide the registered keeper with a parking permit despite applications from the registered keepers landlord and the registered keeper himself.

6. The defendant’s tenancy agreement commenced on 17 September and was in the process of moving into the flat on 18 September 2018, the date of the alleged contravention

7. The defendant denies the claim in its entirety

[nosferatu1001]

You havent said what rights your AST grants

You MUST DO THIS

There is no choice in the matter. If you had read around, you would see that for residential cases you MSUT understand what rights you have. It can entirely blow their claim out of the water. Jopson is an Appeal case and so you also MUST include reference to the fact that UNLOADING IS NOT PARKING.