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Went to Court today: Blue badge holder vs. Parking co, Judge adjourned case - Help needed writing Defence
tld2004
post Mon, 4 Jun 2018 - 12:39
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Hi All

I attended Court today as a McKenzie friend for family friend vs parking co. Just want to provide a summary of events as I think its helpful for others.

To cut a long story short, family friend received a PCN from parking co last year whilst collecting daughter from daughters property. The driver is disabled and parked outside door to property displaying her blue badge in window as no disabled parking pays on site. Pictures from PCN show disabled badge on display.

Parking co got keeper details from DVLA, all the letters followed addressed to Keeper (not the driver at time), parking co filed Claim at Court. Family friend did not file defence etc (they are elderly and found it overwhelming so kept it quiet etc) but asked Judge in the DQ to set case in the aside due to driver being disabled and only being there to collect daughter. The claim proceeded to Court.

I only found out about this Court date yesterday(!) as the Keeper didn't really understand the paperwork/process. I offered to be McKenzie friend, looked over the paperwork etc and went to Court this morning.

We provided lease doc which does not state the parking co are instructed to patrol the site, said driver is disabled, and no disabled parking on site. Parking co seemed to think that they are instructed and showed a one page 'contract' between themselves and managing agent (not landowner). Judge queried chain of contracts. Judge asked why land (and 'contract') not providing for disabled drivers. Parking co said it didn't need to provide disabled parking as it was private land. She disagreed.

PCN photos also show other vehicles in background parked in similar location as the driver did, and Judge asked parking co if they were ticketed. Parking co said 'no' as they are excluded. Judge queried that adjustments clearly made on private land for maintenance vehicles, but not disabled.

Judge authorised defendant to file formal defence asap stating breach of Equality Act.

This post has been edited by tld2004: Wed, 6 Jun 2018 - 11:08
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post Mon, 4 Jun 2018 - 12:39
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Jlc
post Mon, 4 Jun 2018 - 12:53
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QUOTE (tld2004 @ Mon, 4 Jun 2018 - 13:39) *
Parking co said it didn't need to provide disabled parking as it was private land.

laugh.gif


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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nosferatu1001
post Mon, 4 Jun 2018 - 13:15
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On residential land potentially not - assuming that was the case here
Theyre not a service provider. So a comical statement made badly I would suggest

So I assume the claim was adjourned to allow for a full defence to be entered?
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tld2004
post Mon, 4 Jun 2018 - 13:23
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What do you mean "On residential land potentially not - assuming that was the case here"?

Yes it was residential.

Yes guess so. She didn't say those words, just asked Defendant to file formal defence with Courts and Claimant within 14 days so it can be looked at again.
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kommando
post Mon, 4 Jun 2018 - 14:11
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As it was residential, what is much more applicable is what the lease says and in particular any mention of communal areas ref the Jobson case.

http://parking-prankster.blogspot.com/2016...al-parking.html

Communal Areas

There may be communal spaces (eg visitor parking) or access roads where parking permission is not granted by the lease or covered by a permit scheme. Communal areas are not necessarily a free-for-all, governed only by the operator signage. This was central to the Jopson case: an easement over the access roads implies a right to stop and load/unload.






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Eljayjay
post Mon, 4 Jun 2018 - 15:21
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My first thought on your thread was that the judge has simply got this wrong: generally, car parks provided for residents are not commercial car parks and are, therefore, not subject to the requirements of the Equality Acts.

On thinking about it again, however, given that this car park has a parking contractor purportedly offering parking (presumably for £100 a day, less if paid early, but more if paid late), that changes the car park from one intended for a specific group of people and no one else into one providing parking (albeit expensive parking) to everyone.

So, an argument about "reasonable adjustments" may be a good argument.

Do not, however, build a defence on that point alone.

Your friend's daughter's lease may be provide additional comfort. So, get hold of the lease. If you can, get it scanned as a searchable pdf document - you need something better than the free version of Adobe for this. Then conduct a search for "park". Copy and paste every bit of the lease mentioning "park" into a new document.

Then go through it again to look for anything that makes provision for changes to the lease to be made or for rules and regulations to be added by the landlord and/or the management company. Copy and paste those bits to the new document.

Do the same again but, this time, looking for anything about "rights of third parties". Copy and paste again.

Search for "rent", "charge" and "permit". Copy and paste anything of relevance.

Do not just select extracts which suit your case, copy and paste everything of relevance. The reason for this is that, if the parking operator gets a copy of the lease, you need to figure out how to defend yourself from extracts that they throw at you.

On each search, go though the lease from beginning to end.

Post what you find.

Often, parking contracts are agreed between the parking company and managing agents without the latter bothering to seek authorisation from the owner or occupier of the land. So, I would suggest that you get your friend's daughter to contact the freeholder to enquire whether or not it has authorised the managing agents to sign the contract on its behalf. It may that the managing agents work on behalf of a management company (and not the freeholder). If this is the case, the management company may have no right or obligation under the lease to manage parking.
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tld2004
post Mon, 4 Jun 2018 - 16:58
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Thanks Eljayjay.

Do we need to have the original lease, the one when the initial lease was made (January 1987)?

The property was bought by defendant and daughter c.2003 and only docs we have here in the conveyancing pack appear to be variations or adjustments made before and after if that makes sense.

For example, the land the flats are on is huge. Part of the land was sold to someone in year 2000 and then sold on again in 2005 resulting in a petrol station (purchaser/sub-purchaser) and cricket club being built there so the two docs I have here from Land Registry talk about who is responsible for what, building a wall etc.

I found a few things in these docs re "parking", 3rd parties, transfer etc, but these are only 5 page documents:

TITLE ABSOLUTE: Restriction: Except under an order of the Registrar no disposition by the proprietor of the land by way of sale, assignment, transfer or lease is to be registered without the consent of the registered proprietor of the reversionary title.

That the purchaser will on demand pay the vendors a fair proportion (having regard to extend of user) of any expenses incurred by the Vendors in maintaining repairing and renewing the accessway.

That no cars or any other vehicles belonging to the Purchaser its customers or licensees shall at any time be parked or left standing on the accessway.

At all times hereafter to comply with all statutory requirements and the requirements of all relevant local authorities (including the local planning authority) with respect to the use of the accessway by the Purchaser its customers licensees and employee hereunder and to indemnify the Vendors and the members of the said Club for the time being from and against all claims actions proceedings demands costs expenses loss and liability directly or indirectly arising out of the such use of the accessway or otherwise in respect thereof.



Happy to request copies of the original lease from 1987 and go through that searching for keywords, but not certain we'll get it back in time before 14 days is up...
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nosferatu1001
post Mon, 4 Jun 2018 - 17:08
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get A copy from the land registry. Today. Pretty sure it's almost immediate.

You want then lease in full. Unless the judge has directed that you can ONLY use ea2010 you are ok to use this and this is absolutely key.

The defence does not need actual evidence at this point , unless the judge ordered so? It's simply a list of legal arguments. No evidence. That would be later.
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tld2004
post Mon, 4 Jun 2018 - 17:27
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I done it. I obtained it from Land Reg. Cost £3. It provided just one doc. I done a search on keywords, and can confirm:

TITLE ABSOLUTE: Restriction: Except under an order of the Registrar no disposition by the proprietor of the land by way of sale, assignment, transfer or lease is to be registered without the consent of the registered proprietor of the reversionary title.

That the purchaser will on demand pay the vendors a fair proportion (having regard to extend of user) of any expenses incurred by the Vendors in maintaining repairing and renewing the accessway.

That no cars or other vehicles belonging to the Purchaser its customers or licensees shall at any time be parked or left standing on the accessway.

At all times hereafter to comply with all statutory requirements and the requirements of all relevant local authorities (including the local planning authority) with respect to the use of the accessway by the Purchaser its customers licensees and employee hereunder and to indemnify the Vendors and the members of the said Club for the time being from and against all claims actions proceedings demands costs expenses loss and liability directly or indirectly arising out of the such use of the accessway or otherwise in respect thereof.

There are excepted from the effect of registration all estates, rights, interests, powers and remedies arising upon, or by reason of, any dealing made in breach of the prohibition or restriction against
dealings therewith inter vivos contained in the lease.


This post has been edited by tld2004: Mon, 4 Jun 2018 - 17:28
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Jlc
post Mon, 4 Jun 2018 - 18:31
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QUOTE (Eljayjay @ Mon, 4 Jun 2018 - 16:21) *
So, an argument about "reasonable adjustments" may be a good argument.

I would agree that the allocated parking doesn't specifically have to provide disabled bays. However, any reasonable adjustments goes beyond that - specifically being able to temporarily park for access as in the instant case. (Moreso if there are no bays)

Worth a read of Jopson here.

Go on, tell us which parking company this is...


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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tld2004
post Mon, 4 Jun 2018 - 20:29
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London Parking Solutions
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Eljayjay
post Mon, 4 Jun 2018 - 21:24
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I think you have obtained the Title as opposed to the lease itself. Although I may not be up-to-date, there are two reasons for this: the cost of £3 is, I believe, too low for a copy lease; and you must, I believe, complete a form OC2.

Was it a fairly short document? Generally, I would expect a lease to be about 20 to 40 pages long.
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publicenemyno1
post Mon, 4 Jun 2018 - 22:23
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QUOTE (Eljayjay @ Mon, 4 Jun 2018 - 22:24) *
I think you have obtained the Title as opposed to the lease itself. Although I may not be up-to-date, there are two reasons for this: the cost of £3 is, I believe, too low for a copy lease; and you must, I believe, complete a form OC2.

Was it a fairly short document? Generally, I would expect a lease to be about 20 to 40 pages long.


I agree, this isn't what you need OP. As above, you can apply using OC2 though IIRC

This post has been edited by publicenemyno1: Mon, 4 Jun 2018 - 22:38
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roythebus
post Mon, 4 Jun 2018 - 23:10
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It doesn't seem to define what an accessway is. Is there a map or plan of said accessways? What if the leasholder's car breaks down on said accessway?
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nosferatu1001
post Tue, 5 Jun 2018 - 07:06
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Frustration would apply in that case.
Left standing is not the same as broken down smile.gif
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tld2004
post Tue, 5 Jun 2018 - 08:57
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Thanks to all - I've prepared the OC2 form and this will be posted today to obtain full copy of the lease.

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tld2004
post Tue, 5 Jun 2018 - 09:10
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I've drafted a defence so far. Can you please take a look and let me know your thoughts.

Whilst I think the lease/chain of contracts contain merit in this case, the Judge was most keen to press the Claimant re: their handling of the Equality Act and 'Failure to make reasonable adjustments' so happy for all advice in this respect:

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

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

Background
3. The Claimant’s operation is unprofessional and predatory, with their staff having been seen operating on site in the past issuing tickets to other disabled drivers, both indicating a breach of the IPC Code of Conduct and discrimination in accordance with The Equality Act 2010. This has been brought to the Claimants attention many times, yet they continue to target disabled drivers on this site.

4. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXXXXXX which is the subject of these proceedings. The vehicle is insured with two named drivers permitted to use it, one of which is registered disabled and a Blue Badge holder.

5. It is admitted that on 23 February 2017 the Defendant's vehicle had stopped at XXXX, for no longer than 15 minutes, to collect the Defendants daughter. A disabled Blue Badge was placed on display.

6. The purpose of the vehicle stopping in this location was to collect the Defendant’s daughter, who is also registered disabled and a Blue Badge holder, as there are no disabled parking bays on site.

6.1 The vehicle had stopped in this location for the purpose of enabling the disabled driver to alight the vehicle without aggravating their medical condition, and enter the premises to collect the Defendants disabled daughter.

6.2 The vehicle had also stopped in this location to assist with the Defendant’s disabled daughter boarding the vehicle without aggravating her medical condition.

7. No evidence has been provided to show a valid Notice to Driver was given to the driver in accordance with Paragraph 7, Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

7.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the POFA.

7.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
7.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
7.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

It is not admitted that the Claimant has complied with the relevant statutory requirements as the lease does not stipulate that the Claimant is instructed by the landowner to manage parking on site.

7.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle’s keeper is obliged to name the driver to a private parking firm. Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

The Equality Act 2010
7. There is no disabled parking available on site for disabled drivers which is in breach of the Equality Act 2010.

Alternative Claim – Failure to make reasonable adjustments – The Equality Act 2010
8.1. Maintenance vehicles are regularly present on site and parked in the same location as the Defendant’s vehicle, but are not ticketed by the Claimant, indicating that the Claimant exercises discretion and makes ‘reasonable adjustment’ for maintenance vehicles, but has failed to make ‘reasonable adjustment’ for disabled drivers.

8.2 Despite there being a valid Blue Badge clearly on display when the vehicle was observed, the Claimant failed to make ‘reasonable adjustment’ for the disabled driver and still ticketed the Defendant’s vehicle.

Alternative Claim – Authority to Park and Primacy of Contract
9. The Defendant avers that there was an absolute entitlement to park vehicle(s) deriving from the terms of the lease, which cannot be fettered by any alleged parking terms.

9.1. There is no agreement within the Defendants’ lease that states the Defendant or lawful users of his/her vehicle having to pay parking penalties to the Claimant or any third party parking management company when the leasehold agreement permits the parking of vehicles on the land.

9.2. Primacy of contract cannot be amended by private parking company signs unless there has been a variation of the tenancy, which has not been the case.

9.3. The Defendant avers that the operator’s signs cannot:

9.3.1. override the existing rights enjoyed by residents and their visitors.

9.3.2. that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.

9.4. Accordingly it is denied that:
9.4.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
9.4.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson vs Homeguard Services Ltd [2016] and of Sir Christopher Slade in K-Sultana Saeed vs Plustrade Ltd [2001] EWCA Civ 2011, in the event that this matter proceeds to trial.

Alternative Claim – No standing to bring a Claim
10. It is believed that the Claimant has no standing to bring this claim nor is entitled to any sums sought. The proper Claimant is the landowner. The Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to the Claimant. The Defendant claims that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

10.1. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.


Alternative Claim – Vehicle was not parked
11. The vehicle was stopped on the access way for the purpose of loading/unloading only, and was not “parked”. This was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court in Jopson vs Home Guard Services B9GF0A9E.

11.1. In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. The right of way in that case was: “To pass and re-pass with or without vehicles… for the purposes of obtaining access to the building… known as the auction mart.''

11.2. In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not “parking”. The Judge also confirmed that the concept of “parking”, as opposed to “stopping”, is that of “leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars”.

11.3. The vehicle was stopped on the access way because the Defendant is registered disabled, and stopping on the access way was to provide ease of access to the building only.

11.4. The lease provides use of a private garage at the address, causing no need for the vehicle to be “parked” on the access way other than for ease of unloading due to disability, but the garage was obstructed by a maintenance vehicle at the time. This can be seen from the Claimant’s photographs.

11.5. Strict proof is required that the vehicle was not loading/unloading.

Alternative Claim – Signs do not say “No Loading/Unloading”
12. The vehicle was not “parked” because it was “unloading”. The common differences in term between the two is enshrined in law in Section 86 (8) (b) of the Traffic Management Act 2004.

12.1. The Claimant’s signs that are displayed on the land only state “no parking” and do not clearly define the term “parking” to include “stopping”, “waiting”, “boarding”, “alighting”, “loading” and “unloading”. Therefore, the vehicle was not "parked" according to the well understood definition of the term, and no charge is due.

Alternative Claim – No offer to park
13. The signage forbids parking and makes no offer to park, meaning no contract can be formed without an offer. This has been well documented from several other cases, particularly PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6 [2016] and Horizon Parking v Mr J C5GF17X2 [2016].

13.1. The Court will be referred to these cases in the event that this matter proceeds to trial.

Alternative Claim - Failure to set out clearly parking terms
14. The Defendant relies upon ParkingEye Ltd v Barry Beavis [2015] UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
14.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate:

14.1.1. At the time of the material events the signage was deficient in number, distribution, wording, lighting, and free of foliage to reasonably convey a contractual obligation;

14.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

14.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.

15. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

16. It is denied that the Claimant has any entitlement to the sums sought (apart from properly incurred Court fees) as any added solicitors fees are made up numbers, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.

17. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

I believe the facts contained in this Defence Statement are true.

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nosferatu1001
post Tue, 5 Jun 2018 - 10:25
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11. The vehicle was stopped on the access way for the purpose of loading/unloading only,

I wouldnt say stopped for loading / unloading - in TMA2004 terms, this was assisted boarding / alighting, as it refers to persons and not goods.
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tld2004
post Wed, 6 Jun 2018 - 11:04
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Thanks, I've edited. Any other suggestions?

Just discovered - the daughter of the family friend is now due in Court soon for similar 'offence' - parked in same location a few weeks previous in order to unload the vehicle due to being disabled.

This will be the 3rd time LPS are trying to take the same family to Court, even though they have been told in the past they are disabled.



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

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

Background
3. The Claimant’s operation is unprofessional and predatory, with their staff having been seen operating on site in the past issuing tickets to other disabled drivers, both indicating a breach of the IPC Code of Conduct and discrimination in accordance with The Equality Act 2010. This has been brought to the Claimants attention many times, yet they continue to target disabled drivers on this site.

4. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXXXXXX which is the subject of these proceedings. The vehicle is insured with two named drivers permitted to use it, one of which is registered disabled and a Blue Badge holder.

5. It is admitted that on 23 February 2017 the Defendant's vehicle had stopped at XXXX, for no longer than 15 minutes, to collect the Defendants daughter. A disabled Blue Badge was placed on display.

6. The purpose of the vehicle stopping in this location was to collect the Defendant’s daughter, who is also registered disabled and a Blue Badge holder, as there are no disabled parking bays on site.

6.1 The vehicle had stopped in this location for the purpose of enabling the disabled driver to alight the vehicle without aggravating their medical condition, and enter the premises to collect the Defendants disabled daughter.

6.2 The vehicle had also stopped in this location to assist with the Defendant’s disabled daughter boarding the vehicle without aggravating her medical condition.

7. No evidence has been provided to show a valid Notice to Driver was given to the driver in accordance with Paragraph 7, Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

7.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the POFA.

7.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
7.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
7.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

It is not admitted that the Claimant has complied with the relevant statutory requirements as the lease does not stipulate that the Claimant is instructed by the landowner to manage parking on site.

7.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle’s keeper is obliged to name the driver to a private parking firm. Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

The Equality Act 2010
7. There is no disabled parking available on site for disabled drivers which is in breach of the Equality Act 2010.

Alternative Claim – Failure to make reasonable adjustments – The Equality Act 2010
8.1. Maintenance vehicles are regularly present on site and parked in the same location as the Defendant’s vehicle, but are not ticketed by the Claimant, indicating that the Claimant exercises discretion and makes ‘reasonable adjustment’ for maintenance vehicles, but has failed to make ‘reasonable adjustment’ for disabled drivers.

8.2 Despite there being a valid Blue Badge clearly on display when the vehicle was observed, the Claimant failed to make ‘reasonable adjustment’ for the disabled driver and still ticketed the Defendant’s vehicle.

Alternative Claim – Authority to Park and Primacy of Contract
9. The Defendant avers that there was an absolute entitlement to park vehicle(s) deriving from the terms of the lease, which cannot be fettered by any alleged parking terms.

9.1. There is no agreement within the Defendants’ lease that states the Defendant or lawful users of his/her vehicle having to pay parking penalties to the Claimant or any third party parking management company when the leasehold agreement permits the parking of vehicles on the land.

9.2. Primacy of contract cannot be amended by private parking company signs unless there has been a variation of the tenancy, which has not been the case.

9.3. The Defendant avers that the operator’s signs cannot:

9.3.1. override the existing rights enjoyed by residents and their visitors.

9.3.2. that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.

9.4. Accordingly it is denied that:
9.4.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
9.4.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson vs Homeguard Services Ltd [2016] and of Sir Christopher Slade in K-Sultana Saeed vs Plustrade Ltd [2001] EWCA Civ 2011, in the event that this matter proceeds to trial.

Alternative Claim – No standing to bring a Claim
10. It is believed that the Claimant has no standing to bring this claim nor is entitled to any sums sought. The proper Claimant is the landowner. The Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to the Claimant. The Defendant claims that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

10.1. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.


Alternative Claim – Vehicle was not parked
11. The vehicle was stopped on the access way for the purpose of assisted boarding and alighting only due to the driver and passenger both being disabled, and was not “parked”. This was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court in Jopson vs Home Guard Services B9GF0A9E.

11.1. In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. The right of way in that case was: “To pass and re-pass with or without vehicles… for the purposes of obtaining access to the building… known as the auction mart.''

11.2. In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not “parking”. The Judge also confirmed that the concept of “parking”, as opposed to “stopping”, is that of “leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it. Merely to stop a vehicle cannot be to park it; otherwise traffic jams would consist of lines of parked cars”.

11.3. The vehicle was stopped on the access way because the Defendant is registered disabled, and stopping on the access way was to provide ease of access to the building only.

11.4. The lease provides use of a private garage at the address, causing no need for the vehicle to be “parked” on the access way other than for ease of unloading due to disability, but the garage was obstructed by a maintenance vehicle at the time. This can be seen from the Claimant’s photographs.

11.5. Strict proof is required that the vehicle was not loading/unloading.

Alternative Claim – Signs do not say “No Loading/Unloading”
12. The vehicle was not “parked” because it was “unloading”. The common differences in term between the two is enshrined in law in Section 86 (8) (b) of the Traffic Management Act 2004.

12.1. The Claimant’s signs that are displayed on the land only state “no parking” and do not clearly define the term “parking” to include “stopping”, “waiting”, “boarding”, “alighting”, “loading” and “unloading”. Therefore, the vehicle was not "parked" according to the well understood definition of the term, and no charge is due.

Alternative Claim – No offer to park

13. The signage forbids parking and makes no offer to park, meaning no contract can be formed without an offer. This has been well documented from several other cases, particularly PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6 [2016] and Horizon Parking v Mr J C5GF17X2 [2016].

13.1. The Court will be referred to these cases in the event that this matter proceeds to trial.

Alternative Claim - Failure to set out clearly parking terms

14. The Defendant relies upon ParkingEye Ltd v Barry Beavis [2015] UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
14.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate:

14.1.1. At the time of the material events the signage was deficient in number, distribution, wording, lighting, and free of foliage to reasonably convey a contractual obligation;

14.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

14.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.

15. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

16. It is denied that the Claimant has any entitlement to the sums sought (apart from properly incurred Court fees) as any added solicitors fees are made up numbers, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.

17. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

I believe the facts contained in this Defence Statement are true.

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nosferatu1001
post Wed, 6 Jun 2018 - 11:34
Post #20


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Personally I still wouldnt put the lease ans an alternative. the lease is absolute on this whereas the EA requires "reaosnable" adjustments.

I would suggest in future a counterclaim and /or a LBA to the MA who brought these gits on site, telling them to cease and desist their trespass, harassment and breach of DPA, that they are withdrawing any implied right to access they think they have.
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