Afternoon everyone.

I recently received a letter from a parking management service based in Bournemouth stating that my parking permit for my car in my apartment block was not on display and was subject to a £80 fine. I did not see a ticket attached to my car so this was the first I have heard of it. I replied stating that I did not see the ticket and don't believe my permit wasn't displayed as it is always on display.

They refused to cancel my charge based on this grounds, partly because of a previous parking ticket they issued which they cancelled. This was because I was able to prove I was waiting for a new parking permit to be given to me.

I replied to their refusal asking what difference it makes if a ticket was cancelled in the past. I also asked them to send photographic evidence that a permit wasn't clearly displayed in my car. They did not reply and I thought they had given up, but this weekend I received a Claim form from the county court business centre. I would like to dispute this claim, but want to make sure I write my defence correctly.

1) I want to make it clear that I would be willing to pay the outstanding charge if they can provide me with evidence. Are they under any obligation to have provided this evidence before it gets to the court claim stage?

2) My car is often parked right next to a wall (underground parking garage). I don't think they would have been able to photograph my windscreen and my reg plate at the same time. If that's the case, can I argue that there's no way of proving it's my car in the photo? Or would they be able to use other photos from different angles as evidence?

I want to make sure I get my defence right, so would appreciate any advice.

Thank you,

Pooleparkingproblem

What does your lease/rental contract say about parking, this is the senior contract and trumps any signs you can see if it has the right content.

For now acknowledge the claim online, do not dispute jurisdiction, you will be defending in full, leave the defence box completely blank. This will give you 28 days plus 5 from the issue date to compile a defence.

Your defence needs to be based on legal arguments, the permit may be superfluous if your lease has no requirement for a permit to be displayed.

Your point 1) is the exact opposite of getting it right.

If your lease, or tenancy agreement, grants you rights to park, and doesn't specify the need to display permits, or pay penalties to a third party for non-display of same, why would you pay a charge for something which you already have?

There have been loads of cases on this point, all decided in favour of the motorist, on the basis that the lease has primacy of contract, and the parking company signage means diddly squat.

Google Jopson v Homeguard Services, PACE Recovery v Noor, Link Parking v Parkinson for starters.

As for point 2), they have to prove their case with evidence if it goes to court. But as per point 1) above, you may not be legally obliged to display a permit in any event.

There is nothing in the tenancy agreement that mentions parking. All I could find was a print out in a welcome pack provided by my landlady. It is a notice from a previous parking management company that does not mention parking permits at all. I believe that the current parking management company took over at the end of last year, but did not receive any notification or update on parking requirements. They put up notices around the site and installed parking cameras, but I received nothing in writing.

Acknowledge the claim online. Put NOTHING in the defence box. Do NOT contest jurisdiction.

This gets you extra time to compile your defence.

Read through the cases quoted by Bargepole above. Have a look at other residential cases on here and draft your defence.

Post it on here for fine tuning. WATCH THE DEADLINES very carefully.

So you need a copy of the lease. As a start you have a tenancy agreement that is silent on any parking conditions, does it mention a term like a right to quiet enjoyment.

So any arrangement is after your original contract with the landlady and that arrangement has primacy.

Yes there is a quiet enjoyment clause.

"That the Tenant paying the rent and performing and observing the obligations on the Tenant's part contained in this Agreement shall peaceably hold and enjoy the Premises during the Term without any unlawful interruption by the Landlord or any person rightfully claiming under, through or in trust for the Landlord."

What exactly does this mean?

Would any of this potentially cause my landlord any grief?

That the landlord, or anyone employed by them, cannot annoy you by telling you to pay money, or that you need to enter a contract with them in order to be able to park

Is there anything on there about introducing from time to time reaosnable regulation (of parking) or similar?

Parking is not mentioned at all in the agreement. I've asked the letting agency to see if there's another lease agreement that I might not have seen recently, just to make sure I have the most up to date documents.

I did not ask specifically about parking. Thats the function of parens.

Is there anything about introducing .... regulation? Answer that question.

Sorry, I misread. There is no mention of introducing regulation in the agreement. I checked with the letting agent and the agreement I have is the up to date and valid one, issued to me when I moved in at the start of 2014.

OK, meaning
0) the lease allows you to park a vehicle / many vehicles / etc
1) the lease makes no requirement to display a permit etc
2) the lease gives no penalty for not displaying a permit
3) the lease does not bind yo uto contracting with a third party to do something you can already do, namely park. There can be no contract
4) the grantor may not derogate from their grant - so even if the landowner has contracted the firm - unlikely, usually its a MA that does so, they dont usually have the correct authority to offer parking contracts - they cannot then take back what was granted, ie. the right to park, and offer that right to someone else.

So in summartion

5) they can FRO with any claim.

That is prettty mcuh your first defence point

There are of course others - not least the PoC are likely awful, they will have added made up fees that simply arent allowed in small claims, etc.

SHow us your draft ASAP.

I will prepare a draft today to share with you all. Thanks so much for your help so far.

I should probably add that, after reading this website, I notice that the parking management company are pretty notorious in the Bournemouth/Poole area, especially with rumours about being friendly with the judges. I'm not in a position to have it moved elsewhere. Is that likely to be a problem?

Is this enough for a defence or do I need to go into more detail?

'I am defending myself against this claim for the following reasons.

In my tenancy agreement signed in February 2014, there is no mention of having to display a parking permit to be able to park in the space allocated to my apartment. The lease does not state that there is a penalty for not displaying a permit and does not bind me into a contract with any third party with regards to parking in the space allocated to my apartment.

The only reference to parking I have received since I moved into the apartment in February 2014 was a notice in the welcome pack from a previous parking management company advising that I should park in my allocated space and not obstruct any other vehicles. There was no reference to displaying a permit. I have not been notified of any changes in parking management or the usage of the parking space allocated to my apartment.

I also requested that the parking management company send me evidence that my permit was not displayed on my car. My letter requesting this evidence was ignored.'

Should I mention a previous parking ticket that was cancelled? Should I also include the letters sent to the company previously, even though they do not reference the tenancy agreement defence?

Your defence has to be legal arguments, ie where are your references to Jopson v Homeguard Services, PACE Recovery v Noor, Link Parking v Parkinson.

Come on, thats not even as detailed as mine!

What DEFENCES have you looked at? There are dozens here. I said it was the FIRST POINT. There are more. You didnt even attack their POC - which we havent seen.

While theyre pretty notorious, it isnt really for residential cases that Ive seen.

Sorry everyone! I underestimated how much work to put in. Will sit down properly this weekend and go through everything, come up with some legal arguments and references.

Thanks for all your help so far!

Research here , parking prankster and on MSE forum only
Cases from 2017 or so.

I have updated my defence statement after finding some relevant cases on here, and also a useful document on Parking Cowboys:

I am XXXXX, defendant in the matter. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

The claim is denied in its entirety. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons.

Firstly, the claim makes reference to a breach of the terms and conditions of parking in the car park. However, the letting agreement which I signed as part of my tenancy makes no reference to any terms and conditions for parking. I was informed that a parking space was assigned to the flat I was letting and that my sole responsibility was to park in that space. An additional document provided in a welcome pack by my landlady, provided information from a parking management company, that again did not state the requirement to display a permit, solely to park within the lines of my designated space and not to obstruct other vehicles, stairwells or the room containing the bins.

The ‘Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: recovery of unpaid parking charges’ states in section 5.2 that:
‘For Schedule 4 to apply the driver of a vehicle must first be liable for unpaid parking charges. There are broadly two situations where a driver could become liable for parking charges:
a. where a driver has entered into a contract to park on private land and failed to comply with the terms and conditions of that contract; or
b. where a driver has trespassed on private land where signs showing charges for unauthorised parking are displayed.

I therefore disagree that my vehicle was in breach of terms and conditions for parking as 1) my letting agreement does not state that any such conditions exist, 2) no notification was received of any changes to rules and regulations for parking in the space allocated to my flat, and 3) my letting agreement signed in January 2014 predates any agreement between the claimant and the building management, should such an agreement exist. Therefore:

(1)Primacy of contract applies, and the lease gives residents the right to park which cannot be unilaterally overridden by a third party.

(2)There is a large body of case law which establishes this. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents, nor charge for them, or this would constitute a matter of 'derogation from grant' which the courts could not support.

(3)In Pace v Mr Noor [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

(4)In Link Parking v Ms Parkinson C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.

(5)In Pace v Mr Noor [2016] C7GF51J1, PACE came back again, this time claiming that clause 6.3 of the lease allowed the terms of the lease to be varied. The judge ruled that this clause required a month's notice to be given, and as this had not occurred, the point was moot. The claim, and 7 others relying on this, were dismissed.

(6)If the lease does not give primacy of contract, then the contract is established at the time the permits are given to the residents by the management. The signage is there only to create contracts with non-residents. This contract cannot be unilaterally altered.

(7)The above point was recently tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that:

“If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.”

The claimant states that signage around the parking garage clearly state the terms and conditions of parking. But the signs are not visible from my parking space and must have been put in place whilst my car was parked in its space, changing the terms and conditions while I was already in my space.

As well as disputing the validity of the ticket, I also dispute that the penalty issue is of a fair amount. Schedule 2 of the Unfair Terms in Consumer Contracts Regulation 1999, states that contractual terms can be deemed unfair if:

‘1. Terms which have the object or effect of–
(e) requiring any consumer who fails to fulfill his obligation to
pay a disproportionately high sum in compensation.

The Office of Fair Trading’s guidance on the aforementioned document states:

‘5.1 It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law. Other types of disproportionate sanction are considered below – Part III, Group 18©.’

As this is a residential car park and the use of my allocated parking space did not cause any loss of earnings to the claimant, I believe the charge of £100 is grossly overinflated.

The claimant has also so far refused to provide any evidence of the validity of their parking charge notice. I replied within 28 days of receiving their first written communication, asking for evidence to support their charge, and received no response. The claimant has not responded to my request.

I believe the facts stated in this defence are true.

Does your rental agreement have a statement similar to 'right to peaceful enjoyment', if so you should include that in your defence as confirming your right not to be ticketed by a 3rd party.

It does. Should I add the full clause as written in the agreement?

Yes

DO NOT take thigns from the parking cowboy site.

Im guessing you picked up UTCCR 1999 from there? That regulation no longer exists. Replaced 2 years ago. THATS how useful that site is....

MSE or pepipoo. NOWHERE else. NOWHERE

Every single paragrpah must be numbered. All of them
See other defences for how to lay out them out. They need to be LEGAL ARGUMETNS.

Took another stab at the defence claim. Please let me know if I am missing anything major.

-----

I am XXXXX, Defendant in the matter. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

The claim is denied in its entirety. The Defendant asserts that he is not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons.

(1) The Defendant has prepared the defence on the presumption that the alleged parking contravention is in reference to an occasion whereby the Defendant’s vehicle was parked in an allocated leaseheld residential parking space at the home address of the Defendant.

(2) The Defendant denies that the Claimant has the authority to bring a claim. The Claimant does not own the land where the vehicle was parked, nor does he have any interest in the land. He therefore lacks the capacity to offer parking.

(3)The claim makes reference to a breach of the terms and conditions of parking in the car park. However, the letting agreement which was signed at the start of the Defendant’s tenancy makes no reference to any terms and conditions for parking.

(4)The Claimant has failed to provide strict proof of a chain of contracts leading from the landowner to the Claimant which show that they have a right to unilaterally remove or interfere with the overriding rights conferred in the Lease.

(5)The parking charge is also in breach of the Quiet Enjoyment clause in the Defendant’s letting agreement:
8.1.1
That the Tenant paying the rent and performing and observing the obligations on the Tenant’s part contained in this Agreement shall peaceably hold and enjoy the Premises during the Term without any unlawful interruption by the Landlord or any person rightfully claiming under, through or in trust for the Landlord.

(6)The ‘Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: recovery of unpaid parking charges’ states in section 5.2 that:
‘For Schedule 4 to apply the driver of a vehicle must first be liable for unpaid parking charges. There are broadly two situations where a driver could become liable for parking charges:
a. where a driver has entered into a contract to park on private land and failed to comply with the terms and conditions of that contract; or
b. where a driver has trespassed on private land where signs showing charges for unauthorised parking are displayed.

(7) The Defendant’s disagree that he was in breach of terms and conditions for parking as
a) the letting agreement does not state that any such conditions exist,
b) no notification was received of any changes to rules and regulations for parking in the space allocated, and
c) the letting agreement signed in January 2014 predates any agreement between the claimant and the building management, should such an agreement exist.

(8)Primacy of contract applies, and the lease gives residents the right to park which cannot be unilaterally overridden by a third party.

(9)There is a large body of case law which establishes this. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents, nor charge for them, or this would constitute a matter of 'derogation from grant' which the courts could not support.

(10)In Pace v Mr Noor [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

(11)In Link Parking v Ms Parkinson C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.

(12)In Pace v Mr Noor [2016] C7GF51J1, PACE came back again, this time claiming that clause 6.3 of the lease allowed the terms of the lease to be varied. The judge ruled that this clause required a month's notice to be given, and as this had not occurred, the point was moot. The claim, and 7 others relying on this, were dismissed.

(13)If the lease does not give primacy of contract, then the contract is established at the time the permits are given to the residents by the management. The signage is there only to create contracts with non-residents. This contract cannot be unilaterally altered.

(14)The claimant has also refused to provide evidence to support their claim, despite a request made in writing by the defendant.

(15)Withholding any relevant photos of the car, particularly the windscreen and dashboard, and the signage terms, despite being asked for by the Defendant at the outset, is against the SRA code as well as contrary to the ‘overriding objective’ in the pre action protocol.

I believe the facts stated in this defence are true.

I would put in a final paragraph along the lines of - for the reasons stated above the defendant requests the court strike out the claim as being utterly without merit and having no prospect of success.

So I have received a Directions Questionnaire (Small Claims Track), which I guess it means it's going to court.

What do I need to do to prepare for this next step?

Is now the time to try and get in contact with the housing management company (through my landlady) and ask for a copy of the parking contract?

What else should I be preparing?

Post #2 here on MSE tells you about each stage, and DQ stage (fully covered there, including which boxes to tick and what NOT to tick) does NOT mean the case will definitely go to a hearing:

http://forums.moneysavingexpert.com/showthread.php?t=4816822


Yes.

And prepare for and read other threads about Witness Statements (loads here on pepipoo, and some more linked there in the MSE post #2).