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Private Land, PCNs from VCS that was recruited by the Management Company, Ignored all PCNs and corresponcence
karenep
post Tue, 7 Aug 2018 - 14:08
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We own the property and have an allocated space within the lease - no details of a Parking Scheme in Lease!! Management Company chose to bring in VCS and require you to display a permit to park, failure to show this, you get a PCN placed on the Car - which I ignored as I thought it was just a scam to get money out of me, never thought it would go to Court. I ignored all PCNs, all correspondence and now we have Court papers, three in fact. I contacted the Management Company requiring them to remove me from the Scheme or get the fines cancelled. As it is a group scheme, they cannot remove me - nor can they get the fines cancelled. The fines have come through in my name, however, I was not the one driving the vehicle on these particular days. I have contacted the local MP in Manchester and await her input. I’m wondering what chance I have of fighting this now - would it be better to recruit someone to do this for me? I have spoken to with the Landlords "Mainstay" who basically push me back to Premier Estates, the Management Company who took out the parking contract.
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The Rookie
post Tue, 14 Aug 2018 - 13:42
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In addition to Elijays excellent analysis, its worth remembering that a parking operator can only operate with teh consent of the landholder, as I'm pretty sure you haven't signed a contract with them allowing them to lease out your parking space for a fee (even leasing it to you for a fee), then they have no authority to operate on your land at all. The managing agent can only give authority to operate on areas not demised to leaseholders.


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

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karenep
post Tue, 14 Aug 2018 - 14:27
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I have requested that all three cases are heard together. Regards when they started, I have two dates from Premier Estates, one suggested it was 2014 and another saying in 2015.

"Dear Karen,

Thank you for your subsequent emails relating to the parking patrol. I can confirm Premier Estates Limited authorised for the parking system to be implemented as the Managing Agent for the development to address the parking issues the development was experiencing, which would still be encountering should the permit system not be implemented today.

Unfortunately, we are unable to omit you from the parking enforcement as it is a block contract and all parking spaces are included in the policy. Following the introduction of the parking permit system in 2014 I can confirm the residents are now able to park in their allocated parking bay as oppose to not being able to park, due to non-residents parking their vehicles in the allocated bays whilst they go to either their place of work or the local shops. This has much improved the parking problems at Life 3.

Assuring you of our best intentions at all times.

Kind Regards
Linda
Linda Dolan
Estate Manager" and, another email....


"Good Afternoon Karen,

Unfortunately we are unable to assist you with cancelling parking tickets received under the parking management scheme at Life 3.

The scheme has been in place since 2015, with renewed parking permits issued to the properties each year.

The below was the notification of the introduction of the parking management scheme, sent to leaseholders in February 2015:

Parking Permits/Enforcement

As you are aware from previous Periodic Monthly Updates, we are in the process of introducing a Parking Permit/Enforcement System. The delay with this was due to a small number of allocated parking bays being registered incorrectly with Land Registry. This issue has now been resolved and we are in correspondence with the allocated contractor Vehicle Control Services Limited (VCS) to arrange for mobile patrols on the development.

In order to prevent unauthorised parking on the development, each vehicle will need to display a valid parking permit at all times in their vehicle. Any vehicle that does not display the parking permit will be issued with a fixed financial penalty. This will also apply to any vehicles not parked in their correct parking bays and applies to both underground and external parking bays. One parking permit per parking bay will be issued free of charge at a later date, once a date for the patrolling to commence has been confirmed.

In order to proceed please could you kindly email emma.senior@premierestateslimited.com to confirm the details of your vehicle:
Vehicle Make and Model
Vehicle Registration Number
The parking at Life 3 is allocated and one permit issued per bay. Should you wish for other vehicles to park there then it is your responsibility to either ensure the parking company are aware – either directly or via us, or alternatively, allow the second vehicle to use the permit for the bay.

I have checked the previous correspondence regarding this and VCS have already advised that at the time of issue you made no attempt to either appeal or offer mitigating circumstances in order to have the tickets revoked, which resulted in them proceeding to the next stage – court.

With reference to your advising that the parking space belongs to your property I would refer you back to your lease, specifically Schedule 3, clause 9:

“Not to cause any obstruction in or on the said shared driveway drives or access roads and footpaths adjacent or leading to the building by leaving or parking or permitting to be left or parked any motorcycle bicycle perambulator or other vehicle belonging to or used by any of his friends servants or visitors and to observe all regulations made by the company from time to time relating to the parking of such vehicles”

This includes the implementation of a parking management scheme.

I appreciate that this is not the answer you were hoping for however there is nothing more we can do to assist you in this matter.

Kind Regards
Linda.
Linda Dolan
Estate Manager


Sorry if this is unnecessary, thought it may be useful to build a bigger picture.

Regards local parking, The nearest NCP charges £3.50 1 hour, £5.50 2-3 Hour, 6-24 Hour £18 and weekends 9-5 £6.


There is street parking outside on Boston Street, Hulme which is free from 6pm till 8am and free from 6pm Saturday to 8am Monday.




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The Rookie
post Tue, 14 Aug 2018 - 14:48
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QUOTE (karenep @ Tue, 14 Aug 2018 - 15:27) *
With reference to your advising that the parking space belongs to your property I would refer you back to your lease, specifically Schedule 3, clause 9:

“Not to cause any obstruction in or on the said shared driveway drives or access roads and footpaths adjacent or leading to the building by leaving or parking or permitting to be left or parked any motorcycle bicycle perambulator or other vehicle belonging to or used by any of his friends servants or visitors and to observe all regulations made by the company from time to time relating to the parking of such vehicles”

This includes the implementation of a parking management scheme.

No, None of that relates to YOUR space.


--------------------
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 10-0 PPC's
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ManxRed
post Tue, 14 Aug 2018 - 15:25
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Which bit of "...shared driveway drives or access roads and footpaths adjacent or leading to the building" do they think includes your parking space?

Nice of them to admit that they hired the PPC. They are acting outwith their jurisdiction and are legally liable for any damages you may wish to seek as a result of this.

I would issue them with the following:

I hereby withdraw all implied access from [the space] to you, your employees, agents and subcontractors (including but not limited to VCS), and any further incursion onto this land for any purpose (including but not limited to inspection of any vehicle parked in that space or the affixing of any speculative invoices to that vehicle) will be deemed as Trespass, and I reserve the right to take legal action against you as appropriate without any further notice.

See what others say. While you are in excellent hands with Eljayjay regards to the existing tickets, my concern would be that they are going to keep doing it.

This post has been edited by ManxRed: Tue, 14 Aug 2018 - 15:31


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karenep
post Tue, 14 Aug 2018 - 15:33
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A while back I wrote to LUCY POWEL MP (Manchester Central MP) and asked whether she could become involved. She has today suggested "Moving forward, Lucy will be willing to contact Premier Estates to raise your concerns with their parking permit policy and to ask them whether there is anyway to rectify this. Lucy could also contact VCS on your behalf to see whether it is possible for them to cancel any of the parking tickets, given the evidence you have provided of you owning the space."



tbh, I do not want to be facing this situation again in the future, and I have asked whether she can contact not and tell them, I do not accept the Permit Scheme and that it is my space to Park whenever I wish without any hassle of this kind in the future.


Thanks ManxRed, will await other comments - like the suggestion!

This post has been edited by karenep: Tue, 14 Aug 2018 - 15:34
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ManxRed
post Tue, 14 Aug 2018 - 15:35
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QUOTE (karenep @ Tue, 14 Aug 2018 - 16:33) *
tbh, I do not want to be facing this situation again in the future, and I have asked whether she can contact not and tell them, I do not accept the Permit Scheme and that it is my space to Park whenever I wish without any hassle of this kind in the future.


In that case, send them the withdrawal of implied access letter. You need to put them on notice before you can retaliate against any future tickets. That letter does that.


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cabbyman
post Tue, 14 Aug 2018 - 15:58
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I believe you may have a cause of action against Premier for:

a) Derogation from grant, and

b) The trespass of their agent on your land.

As far as permits are concerned, you MAY condescend to display a permit to assist with the management of the estate but that specifically excludes the acceptance of any right of an agent of Premier to trespass on your land or chattels.

Then, of course, there is the DPA argument about their agent's improper use of your personal details now that they have been apprised of your situation.

I'm sure others can say if any of the arguments are valid and, indeed, suggest a way to hit them where it really hurts.


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karenep
post Tue, 14 Aug 2018 - 16:22
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[quote name='cabbyman' date='Tue, 14 Aug 2018 - 16:58' post='1407987']
I believe you may have a cause of action against Premier for:

a) Derogation from grant, and

b) The trespass of their agent on your land.

I like the sound of this!
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Eljayjay
post Tue, 14 Aug 2018 - 18:25
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Subject to agreeing with what it says and anything which you consider appropriate to add, your witness statement appears below.

Further below is a counterclaim which I believe you should pursue. [I shall have a couple more questions for you so that we can fill in some of the unknowns in the counterclaim.]



In the County Court at <location of court>


Claim No. <claim number>


Claimant: <name of parking company>


Defendant: <your name>


Statement of Defence


I, <your name> of <your address>, the Defendant in this case, dispute the full amount claimed as shown on the claim form and deny that any amount is owed to the Claimant. In so doing, I make this my Statement of Defence.


INTRODUCTION

1. The Defendant has owned a leasehold apartment 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 lease.

5. The Claimant has chosen blatantly to disregard both the existence of the Defendant’s lease and the Defendant’s rights under it.


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 lease, a specific parking space was demised to the Defendant.

12. The Defendant’s lease contains no requirement to display a parking permit on any vehicle using the demised parking space.

13. The Defendant’s lease contains no requirement to pay parking charges when the demised parking space is used.

14. The vehicle mentioned in the particulars of claim was parked in the Defendant’s demised 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 lease.

15. The Defendant’s lease dictates the amounts payable on an ongoing basis by the Defendant to its other parties. These consist of ground rent and service charges. The lease does not require parking charges to be paid to either another party or a stranger to it.

16. The Defendant is protected against the Claimant’s unauthorised use of her land 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 LESSOR’S STANDING

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

18. The Lessor has demised the parking space to the Defendant.

19. Although the lease allows the Lessor “acting reasonably” to “make further regulations”, the Defendant does not believe that (1) any such regulations have been made and (2) any such regulations could apply to the demised parking space. Furthermore, any such regulations must be “for the benefit of lessees of Dwellings on the Estate” and the Defendant submits that charging lessees exorbitant amounts for parking in their demised parking spaces is neither “acting reasonably” nor “for the benefit of lessees”.

20. If the Defendant had breached any term or condition of the lease, which is denied, the Lessor’s remedy would be to seek damages, not a parking charge, from the Defendant and/or to seek an injunction ordering the Defendant not to repeat the breach.

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


THE COMPANY’S STANDING

22. Another party to the lease is a management company known as the “Company”.

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

24. Although the lease allows the Company “acting reasonably” to “make further regulations”, the Defendant does not believe that (1) any such regulations have been made and (2) any such regulations could apply to the demised parking space. Furthermore, any such regulations must be “for the benefit of lessees of Dwellings on the Estate” and the Defendant submits that charging lessees exorbitant amounts for parking in their demised parking spaces is neither “acting reasonably” nor “for the benefit of lessees”.

25. If the Defendant had breached any term or condition of the lease, which is denied, the Company’s remedy would be to seek damages, not a parking charge, from the Defendant and/or to seek an injunction ordering the Defendant not to repeat the breach.

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


THE CLAIMANT’S STANDING

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

28. Insofar as the demised parking space is concerned, the intention of the lease was to provide a parking space for the exclusive use of the Defendant and other persons authorised by the Defendant.

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

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

31. The Claimant cannot derive any right to use the demised parking spaces for the purposes of its business from any of the parties to it except the Defendant.

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

33. In turn, it follows that the Claimant has no grounds for charging the Defendant for use of the demised parking space.

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


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


Signature: <your signature>

Date: <date signed>




The counterclaim...

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 demised parking space.

3. The Claimant has been using the Defendant’s demised parking space for its business purposes since <date parking company commenced its operations>.

4. To the date of writing, i.e. <date of writing>, therefore, the Claimant has made use of the Defendant’s demised parking space for the purposes of its business for a total of <number> days.

5. It follows that the Claimant has trespassed on the Defendant’s demised 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 £<amount>.

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 owner and 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 £<amount>, the 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 £<product of days times amount>, i.e. <number> days at £<amount> 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 lease, the Defendant is willing to accept the sum of £<product of days times amount> 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 my parking space.


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


Signature: <your signature>

Date: <date signed>

This post has been edited by Eljayjay: Tue, 14 Aug 2018 - 18:28
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karenep
post Tue, 14 Aug 2018 - 21:50
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Eljayjay, this is magnificent, I am so so grateful for your time and input here. One question, before I send it off - the Counter Claim.... I have had the property now 1047 days, the nearest 24 hour car parking is £10 per day. Therefore is it the 1047 x £10 that I should use for my counter claim?
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ManxRed
post Wed, 15 Aug 2018 - 08:44
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Should the counterclaim not also include the Management Company? They are jointly and severally liable for the actions of their agent, VCS, and are more likely to get off their backsides and do something (provided they actually seek legal advice and the penny drops).


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Sometimes I use big words I don't understand in an effort to make myself sound more photosynthesis.
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Redivi
post Wed, 15 Aug 2018 - 09:01
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CPR 20.5

Counterclaim against a person other than the claimant

20.5

(1) A defendant who wishes to counterclaim against a person other than the claimant must apply to the court for an order that that person be added as an additional party.
(2) An application for an order under paragraph (1) may be made without notice unless the court directs otherwise.
(3) Where the court makes an order under paragraph (1), it will give directions as to the management of the case.


It would give Ms Nolan a reason to regret that letter and, if successful, kill off the VCS contract

Thought : If a counterclaim against the Management Company is successful, could it be used by other residents to recover payments previously made to VCS ?

This post has been edited by Redivi: Wed, 15 Aug 2018 - 09:06
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Eljayjay
post Wed, 15 Aug 2018 - 09:02
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karenep

We need to keep the total below £10,000 as that is the maximum for the Small Claims track. I have to do a couple of other things this morning, but will be back later with some ideas.

How did you ask about the Court hearing the three claims together? Was it by email? If so, what did it say?



ManxRed

I understand what you are saying and, in principle, I agree. The problem may be countering two lots of lawyers.
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karenep
post Wed, 15 Aug 2018 - 11:06
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I have the completed defence document, that Ive edited into - would you want me to post here? Also, regards the Court - I wrote to them asking when I sent in the latest lease etc and have emailed, asking the Court Manager whether he would consider and agree to combining all three cases, as they all relate to VCS Limited and myself, albeit different vehicles.
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Eljayjay
post Wed, 15 Aug 2018 - 12:58
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Yes, please do post your defence here (after redacting any identifying data).
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Eljayjay
post Wed, 15 Aug 2018 - 14:51
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I would suggest that your counterclaim should be amended to read as shown below. Towards the end is a draft email for you to send to the Court to pull everything together.

The court fee for a counterclaim of £8,376 would be £455.

As I am sure you realise, although (provided that the Court accepts your statement of defence and the counterclaim) I cannot guarantee that you will successfully defend the claim or win the counterclaim, I do believe that your chances would be very good.


The counterclaim...

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 demised parking space.

3. The Claimant has been using the Defendant’s demised parking space for its business purposes since the Defendant purchased her lease and the space was demised to her.

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 a total of 1,047 days.

5. It follows that the Claimant has trespassed on the Defendant’s demised 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 more than £10.

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 owner and 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 £8, which is probably close to the average 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 £8,376, i.e. 1,047 days at £8 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 lease, the Defendant seeks the sum of £8,376 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>




I would suggest that you send the following email to the Court office so that all of your requests are brought together in a single piece of correspondence. Both your statement of defence and your counterclaim should bear your signature. I would suggest that you send them as two separate attachments in pdf format, naming the former <ClaimNumber>_Defence and the latter <ClaimNumber>_Counterclaim>.



I shall be grateful if you forward this email to the Judge handling Claim No. <ClaimNumber> between <NameOfClaimant> as the Claimant and myself, <YourFullName> as the Defendant.

Dear Judge,

I am the Defendant in the case of <NameOfClaimant> v <YourFullName>, Claim No. <ClaimNumber>.

Due to a complete lack of knowledge about the correct procedures, I entirely misunderstood what I ought to have done when I received the claim form. I now realise that the documents submitted by me were not in the proper format for a statement of defence and I sincerely apologise for my error.

I fervently hope that you will allow me to submit the attached revised statement of defence and accept it in place of the inadequate documents which I submitted previously. I also very much hope that you will allow me to submit the attached counterclaim. Naturally, in the event that you do allow me to submit the counterclaim, I shall pay the Court fee of £455.

I am sending both the revised statement of defence and the counterclaim to the Claimant.

The Claimant has made two other claims, numbered <Claim1Number> and <Claim2Number>, against me which, essentially, are identical to <ClaimNumber>. Given this, I approached the Court Office on xx August 2018 to ask that all three are heard together. As this will save both the Claimant and myself and, most importantly, the Court time and expense, I trust that you will agree to this request.

I look forward to receiving your response to my requests.

Yours faithfully,

<YourFullName>

<YourFullAddress>

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karenep
post Wed, 15 Aug 2018 - 21:58
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Eljayjay, Absolutely perfect, all printed emailed and in the post. Thank you so much icon_syda.gif I will of course keep the post updated on progress here. How do I thank you?


DEFENCE


In the County Court at Worcester
CLAIM NUMBER E4QZ6F25/ E4QZ7F34 & E7QZ7H9Q





Claimant: Vehicle Control Services Limited


Defendant: *****************


Statement of Defence


I, ***********, the Defendant in this case, dispute the full amount claimed as shown on the claim form and deny that any amount is owed to the Claimant. In so doing, I make this my Statement of Defence.


INTRODUCTION

1. The Defendant has owned a leasehold apartment since 02 October 2015 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 numbers K4 *** and ***, and that the vehicles were parked at The Life Building, 1 Boston Street, Hulme, Manchester M15 5AY on 11 August 2017, 12 August 2017 (*****) and 25 July 2017, 26 July 2017, 22 February 2018, 23 February 2018, 25 February 2018 and 25 February 2018 (*****).

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 lease.

5. The Claimant has chosen blatantly to disregard both the existence of the Defendant’s lease and the Defendant’s rights under it.


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 lease, a specific parking space was demised to the Defendant.

12. The Defendant’s lease contains no requirement to display a parking permit on any vehicle using the demised parking space.

13. The Defendant’s lease contains no requirement to pay parking charges when the demised parking space is used.

14. The vehicle mentioned in the particulars of claim was parked in the Defendant’s demised 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 lease.

15. The Defendant’s lease dictates the amounts payable on an ongoing basis by the Defendant to its other parties. These consist of ground rent and service charges. The lease does not require parking charges to be paid to either another party or a stranger to it.

16. The Defendant is protected against the Claimant’s unauthorised use of her land 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 LESSOR’S STANDING

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

18. The Lessor has demised the parking space to the Defendant.

19. Although the lease allows the Lessor “acting reasonably” to “make further regulations”, the Defendant does not believe that (1) any such regulations have been made and (2) any such regulations could apply to the demised parking space. Furthermore, any such regulations must be “for the benefit of lessees of Dwellings on the Estate” and the Defendant submits that charging lessees exorbitant amounts for parking in their demised parking spaces is neither “acting reasonably” nor “for the benefit of lessees”.

20. If the Defendant had breached any term or condition of the lease, which is denied, the Lessor’s remedy would be to seek damages, not a parking charge, from the Defendant and/or to seek an injunction ordering the Defendant not to repeat the breach.

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


THE COMPANY’S STANDING

22. Another party to the lease is a management company known as the “Company”.

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

24. Although the lease allows the Company “acting reasonably” to “make further regulations”, the Defendant does not believe that (1) any such regulations have been made and (2) any such regulations could apply to the demised parking space. Furthermore, any such regulations must be “for the benefit of lessees of Dwellings on the Estate” and the Defendant submits that charging lessees exorbitant amounts for parking in their demised parking spaces is neither “acting reasonably” nor “for the benefit of lessees”.

25. If the Defendant had breached any term or condition of the lease, which is denied, the Company’s remedy would be to seek damages, not a parking charge, from the Defendant and/or to seek an injunction ordering the Defendant not to repeat the breach.

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


THE CLAIMANT’S STANDING

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

28. Insofar as the demised parking space is concerned, the intention of the lease was to provide a parking space for the exclusive use of the Defendant and other persons authorised by the Defendant.

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

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

31. The Claimant cannot derive any right to use the demised parking spaces for the purposes of its business from any of the parties to it except the Defendant.

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

33. In turn, it follows that the Claimant has no grounds for charging the Defendant for use of the demised parking space.

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


I, *********, believe that the facts stated in this statement of defence are true.


Signature:

Date: 14 August 2018







COUNTERCLAIM

In the County Court at Worcester


Claim No. E4QZ6F25/ E4QZ7F34 & E7QZ7H9Q



Claimant: Vehicle Control Services Limited


Defendant:


Counterclaim by the Defendant


1. I, *******************************, 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 demised parking space.

3. The Claimant has been using the Defendant’s demised parking space for its business purposes since the Defendant purchased her lease and the space was demised to her.

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 a total of 1,047 days.

5. It follows that the Claimant has trespassed on the Defendant’s demised 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 more than £10.

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 owner and 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 £8, which is probably close to the average 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 £8,376, i.e. 1,047 days at £8 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 lease, the Defendant seeks the sum of £8,376 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, ***************** believe that the facts stated in this counterclaim are true.


Signature: ********************

Date: 14 August 2018

Attached File(s)
Attached File  DEFENCE_AND_CLAIM_VCS_deacted.doc ( 34K ) Number of downloads: 66
 
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Eljayjay
post Wed, 15 Aug 2018 - 22:34
Post #38


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My fingers are crossed.
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nosferatu1001
post Thu, 16 Aug 2018 - 08:45
Post #39


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My concern is two fold, sadly
VCS can object tot his amended defence
It hasnt been served on them either, which im pretty sure youre required to do

DO you really want to spend the best part of £500 on a counterclaim Im not sure any court would entertain? I have yet to see this trespass based on daily parking rates approach win.
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Eljayjay
post Thu, 16 Aug 2018 - 09:33
Post #40


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Member No.: 91,235



nosferatu1001

What was the alternative really?

A huge amount rides on the Judge understanding the karenep's plight and naivety.

karenep has sent copies of both the statement of defence and the counterclaim to the parking company.

If the Judge does not accept the counterclaim, then the court fee will not be payable.

If the Judge does accept the counterclaim, would the parking company look forward to the prospect of having to defend it?

The basis of the counterclaim, i.e. "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 owner and occupier of the land" is a recognised method of assessing damages in cases of trespass.

Although I have not yet seen it used in a parking case, I believe a Judge would be required to give it full consideration and, frankly, karenep would be doing a huge favour to every victim of a parking company with an allocated parking space if her counterclaim succeeds.

This is a VCS case. VCS was the parking company which received a bloody nose in Pearlofwisdom's case.
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