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VCS - regarding a residential parking spot
OneSaidFred
post Wed, 1 Aug 2018 - 18:26
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Dear forum users,

I thought I would share my experience so far, as well as look for some pre-emptive guidance at certain stages which I am not sure about/hesitant. I have spent a lot of time on the MSE website, taking down notes on each stage up to a request to go to court. Here are the key points so far:

1) I am a private tenant in a block of flats in which a lettings agency manages the property on behalf of the landlord.
2) I am allocated one designated parking spot as per my AST (tenancy agreement) - the AST makes no reference to me having to display a parking permit.
3) I was issued with a parking permit from the property management company (who i assume own or manage the lease) a month after moving into the property several months ago.
4) I supplied my reg number to the management company as they said they would not issue a visitors permit (for a handful of bays) without it. I provided it and they supplied it accordingly.
5) I have since been displaying a "permit" in my car for the last few months.
6) The plastic sticky wallet holding the permit to my windscreen fell off (I can only assume due to the hot weather) and landed in the footwell. As I did not attend to my car for the 2 days following this, I arrived to my horror at my car (in my designated spot) with 2 Red/Black cards attached saying "this is not a parking charge notice" from Vehicle Control Services Ltd.
7) Following advice on the MSE forums, I waited for the NTK (x2) to show up.
8) In the last few days I have submitted their appeal template via myparkingcharge website making no mention of any driver and only myself as the keeper and now await for the inevitable rejection.

My questions and concerns are as follows:

A) My tenancy agreement makes no reference to the property management company, VCS or that I have to display any kind of permit.
B) I have never seen, or been made to see, a copy of any lease that the landlord may be subject to, therefore have no knowledge of whether this lease states anything about a permit. Does this matter? Am I protected via the AST?
C) I don't really want to start harassing my Lettings Agent on the grounds that they are in charge of nearly 2 months worth of rent as a deposit, and they could easily start harassing me when I come to leave the property by making minor claims on my deposit etc... Is there any way to leave them out of this or would you say this isn't possible?
D) MSE makes the point of not appealing, when asked to, to the IPC on the grounds of it being a waste of time and a "kangaroo court" - is the court going to look unfavourably if I don't do this?
E) What am I likely to expect from this point onwards and on what timescales?
F) What am I ignoring, and what am I responding to if received? I am aware not to ignore a letter about attending court, but how is this received?

Any help and guidance would be greatly appreciated. The work you people do here, alongside other websites, makes me feel like there is hope for humanity yet...
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post Wed, 1 Aug 2018 - 18:26
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OneSaidFred
post Sun, 27 Jan 2019 - 19:02
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I have edited the following:

12. The Claimant has added an additional sum of £60 to the original £100 parking charge, for which no justification has been provided. The Defendant believes that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.
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OneSaidFred
post Sun, 27 Jan 2019 - 19:24
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DEFENCE (v2)

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is admitted that, at all material times, the Defendant was the registered keeper of the XXX with vehicle registration number XXX which is the subject of these proceedings.

3. It is admitted that, at all material times, the Defendant's vehicle was parked at [location] in the correct parking space allocated to his apartment XXX.

4. The Defendant has held an Assured Shorthold Tenancy agreement at XXX (the “Premises”) between himself and XXX (the “Landlord”) where the Landlord has let to the Defendant (i.e. the “Tenant”) the Premises for a period of 24 months, with the tenancy starting on and including the XXX and shall end on and include the XXX. This agreement was brokered and administered via XXX (the “Agent”). A copy of the Tenancy Agreement will be provided to the Court.

5. The Defendant has the right to park a vehicle granted by the Tenancy Agreement, which does not require the display of a permit or to pay penalties to third parties, such as the Claimant. The Claimant has no consideration to offer the Defendant that the Defendant does not already possess. The relevant paragraphs of the agreement are:
“SCHEDULE 1
OBLIGATIONS OF THE TENANT
Cars and Parking
15.1. To park a private vehicle only at the Premises.
15.2. To park in the car parking space, garage or driveway allocated to the Premises, if applicable.
15.5. Not to park any vehicle at the Premises that is not in road worthy condition and fully taxed.
SCHEDULE 6
SPECIAL CONDITIONS
Special clauses individually negotiated between Landlord and Tenant
1. Including one allocated parking and use of bike shed.”

6. It is noted that within the terms of the Tenancy Agreement, references are made to a “Head Lease”. The copy of the Head Lease which the Defendant possesses contains no requirement to display a permit, does not override his right to park granted by the Tenancy Agreement and, therefore, the Claimant is still without any possible consideration they can offer that the Defendant does not already possess. A copy of this Head Lease will be provided to the Court.

7. Even if the Claimant claims the vehicle was in breach of any of the enumerated requirements, which they do not, as a third party, they have no rights to enforce any of the terms of the Tenancy Agreement or of a Head Lease.

8. The Defendant, at all material times, kept a vehicle in accordance with the terms granted by the Tenancy Agreement. The erection of the Claimant’s signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the Tenancy Agreement. Accordingly, the Defendant denies having breached any contractual terms as no contract was entered into, by intention or by conduct.

9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement and the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue pieces of paper that state ‘This is not a Parking Charge Notice' and to then pursue payment by means of litigation.

9.1. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is not a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal Notice to Keeper, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

9.2. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

10. The Claimant, or a Superior Landlord, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to section 37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

11. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

12. The Claimant has added an additional sum of £60 to the original £100 parking charge, for which no justification has been provided. The Defendant believes that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

13. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in of its own initiative, using its case management powers pursuant to Civil Procedure Rule 3.4, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £160.00, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

13.1. 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.

13.2. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.
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OneSaidFred
post Mon, 28 Jan 2019 - 18:22
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Have made a couple of minor alterations. Have printed, signed etc... and is ready to go. If anyone has any last minute observations which are important, please let me know.

Kind Regards
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OneSaidFred
post Sat, 8 Jun 2019 - 19:01
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At the point of getting my Witness Statement in order. I've read through the guides etc... but struggling to identify whether a skeleton argument should be used and if so, what should be in it.

I have so far got copies of:
POFA schedule 4
Tenancy agreement
Copy of lease from Land Registry
Parkingeye v beavis
V888/3 DVLA form (according to this form, it would appear they have requested my details of registration way prior to the 29 days time period before they can request)
Section 37 Landlord & Tenant Act 1987
Copies of all correspondence between me and the PPC
Copies of correspondence received from freehold company prior to the event, and after the start of my tenancy, stating that a permit is needed for the Visitor spot only (which I was not in).

Should all of the above be ok to go in the witness statement or must certain parts (perhaps referring to POFA etc...) be only in the skeleton argument?

Also, I have the other ticket to be dealt with on a further date (3 weeks later in court). Should I go about referring to this in my WS or how do I go about trying to resolve this issue at the first hearing. I'm aware of if a case going a particular way, you can ask for the next case to be dealt with on the same basis, but not sure how I go about this formally/

Any guidance would be much appreciated
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The Rookie
post Mon, 10 Jun 2019 - 09:46
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A skeleton argument is useful but has nothing to do with your witness statement which you MUST get in on time, sort that out first then worry about any SA!

You should be applying to the court for both cases to be heard together if they are on substantially the same set of facts, it's a common way for parking companies to try and make extra profit.


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nosferatu1001
post Mon, 10 Jun 2019 - 14:53
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Skeleton is done a few dys before the hearing, AFTER you have a copy of the Claimants WS and bundle. You cannot be writing your SA now, just get the witness statement done.
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OneSaidFred
post Mon, 10 Jun 2019 - 19:30
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Thanks guys

Absolutely I will be getting the Witness Statement done first and aware of the deadline for this.

I have printed off copies of a lot of supporting documents. These include multiple case laws, copies of POFA along with the tenancy agreement and lease. Should the case law be referred to in the skeleton or the WS? If the first, does that mean it cannot be attached to the WS?

With regards getting the case seen to at the same time, have I missed the boat on this? I need to submit my WS by next Thursday at the latest.
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ostell
post Tue, 11 Jun 2019 - 08:56
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Skeleton is just a quick summary of the arguments to be used in court. You need to attach the documents as exhibits with the witness statement. It suggested that the exhibits are numbered using your initials and a sequence number, ie OF001 etc.
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nosferatu1001
post Tue, 11 Jun 2019 - 10:45
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You have to attach all evidence to your WS, as the court document is explicit about.
The SA is optional.
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OneSaidFred
post Tue, 11 Jun 2019 - 17:11
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Thanks guys, I've had the WS for the PPC come through - full of rookie mistakes if I'm honest to an extent that it almost seems deliberate. They have mentioned case law but not provided it in the WS. Is that right?
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OneSaidFred
post Sun, 28 Jul 2019 - 14:50
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Update 28.07.19 - I successfully defended my cases in court (under one hearing) and the judge dismissed the case.

Order of events:

I arrived 30 minutes early to the hearing. Smart, suit and tie etc... The rep the PPC had sent approached me during this time and introduced himself to me. He asked whether we needed to go into a separate room and have a chat and (as advised through other posts here) I politely refused.

We were ushered in to see the Judge. The District Judge honed in on my Assured Shorthold Tenancy from the very start, and straight away it felt as if the Judge had my back, so I left the Judge to it and tried to keep my mouth shut at all times except when asked a question directly.

The Judge basically went through my AST and, as I had used in my defence and witness statement, reiterated my point that the terms of my parking were already agreed in the agreement with my landlord and no where did it say that I had to display a permit or agree to their "terms and conditions" of a 3rd party.

The rep tried to argue that the PPC had a contract with the management company of the estate of flats. However, whilst the contract was signed 1 month prior to me signing my AST, I was not made aware of this agreement until 1 month after when the permits appeared in the post. Therefore I couldn't possibly have had any prior knowledge of this happening.

He then argued that the AST stated that I would be bound to the terms of the head lease, should a copy have been given to me at the start of the tenancy, which it wasnt. So again, by law, there were no grounds for me to have to comply with this third party.

The Judge had to keep repeating to the rep that as a matter of law, they had no legal right to impose their scheme on me. The Judge even questioned whether the guy had a law degree! (LOL) and that whilst the Judge could understand that he was there representing his client, you can't just simply spout nonsense with no legal grounding.

The Judge then simply made a final statement wrapping up the case and dismissed both of the claims against me.

I asked if I could have my costs. I was able to have my return bus ticket and half a days pay and they have 14 days to pay me.

I would like to thank everyone's help on these forums. Without it I would most likely have been under significantly more stress and worry, but my nature is to research things so that I have a full understanding of what goes on in my life, and it encourages me that there are people out there who want to help others.

My advice to other people in a similar situation to me.

1) Check your tenancy agreement with a fine tooth comb. If it details a parking spot with no requirement to display a permit, then you are fine. Also, if it mentions the head lease and that you must be bound to it (which in my case I wasn't as it said "only if a copy was given to me" - which it wasn't), then get a copy of the head lease from the Land Registry and again check it thoroughly. If nothing is listed here, then you are fine. If, for any reason, it does mention it, check whether it was before or after you moved in. If after then, unless you have given explicit consent, it can't be binding on you.

2) Keep it straight forward - Don't try and hone in on points which are either minor or aren't fundamental to your argument/defence. I spent a lot of time looking into the Protection of Freedoms Act and trying to find holes in the way they conducted themselves. Whilst their "hybrid tickets" may well have held up had it been the main crux of the argument, or if my defence on the tenancy agreement had failed for something that could have been proved wrong (which I knew couldn't have possibly happened), it was a waste of my time in the end. In hindsight, I should have just honed in on my AST. I spent way too much time and worry trying to pick holes from every possible angle.

3) Don't expect to be financially better off at the end of it, because you won't! - I lost a hell of a lot of time researching this, time writing legal documents, time/money copying/scanning/printing masses of paperwork, a considerably amount of stress, anxiety and worry. Even though I am financially capable of taking a hit had I lost, it still put significant stress on me which I couldn't help shake off. The costs you can claim back if you win are minuscule in compared to everything else you lose. Morals were the only thing that won in the end and whilst it feels like a weight has been lifted from my shoulders, I am absolutely not better off financially from this.

4) Treat it as a learning experience - the only positive I can take out of this whole experience is that I now know how a legal case goes through the small claims court, what has to be done and when, the time/costs involved etc...I will be much better prepared, experienced if/when I have to go through a similar process in the future.
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