C7GF51J1 – PACE Recovery v Mr N (adjourned from ). 24/11/2016 DJ Coonan
Mr N had previously won another case on , where the Judge ruled that his tenancy agreement gave him an unfettered right to use the allocated parking space, and that the terms could not be varied by PPC signage. He was requested to obtain a transcript of that Judgment.
Today’s hearing was a ‘test case’ for the seven other claims at various stages in the court process, which the previous Judge’s order had said must be stayed pending the outcome of this. This was back in front of District Judge Coonan, who had dismissed PACE’s claim on
The adjournment order from allowed both parties to file additional witness statements, and Mr N supported his with the judgment transcript from the Jopson case. PACE had filed copies of letters sent to tenants by Affinity Sutton (the landlord) starting in 2006 when the first permit parking scheme had been introduced. But there was no copy of a letter allegedly sent to Mr N, notifying the appointment of PACE in 2014, and Mr N’s statement said he never received this.
PACE were represented by their Director, Michael Charman, who to his credit had declined the offer of an LPC rep, and actually made a far better job of arguing his own case. Mr N was represented by Bargepole, who was also given moral support and useful suggestions, from both Andy Foster and John Wilkie, who turned up to sit in the cheap seats.
The main issues to be determined by the Court were as follows:
1/ Whether the terms of the tenancy agreement constituted primacy of contract over the PPC signs;
2/ Whether the letters sent by the Housing Association created a variation of the terms of the tenancy;
3/ Given that it was stated on these letters that the purpose of the scheme was to “allow residents and visitors to park within the estate by deterring unauthorised parking”, whether there existed any legitimate interest in issuing charges to bona fide residents, such that the Beavis judgment could be distinguished and the charges deemed to be penalties.
Point 1 was quickly disposed of, as we had two persuasive judgments, one from the current Judge, and also one from the Jopson case.
The whole matter turned on point 2; whether the letters from Affinity represented a variation on the terms of the tenancy. Mr Charman relied on clause 6.3 in the tenancy agreement, which stated that the landlord could change the terms of the tenancy by notifying the change, and by consultation with the residents. As Mr N had obtained permits from both previous PPCs, he argued, this signified Mr N’s acceptance of the change, and his company being appointed in 2014 was simply a change of contractor.
The defence argument was that these letters did not explicitly state that they were a variation on the terms, and that in fact the wording at the foot of the letters stating “This letter does not imply that any tenancy exists or will exist”, negated that argument. Furthermore, since there was no letter in evidence relating to the present contractor, the new terms, if any, could not be determined.
The Judge agreed with this argument, but via a different route. She spotted, which neither Bargepole nor Mr Charman had, that the clause 6.3 specified that one month’s notice had to be given for any variation. The original 2006 letter, appointing P4 Parking, only gave 10 days’ notice, and was therefore not compliant. All subsequent changes of contractor were based on the assumption that there had been a variation, and there was nothing in evidence to show that Affinity had lawfully varied the contract.
Therefore, Mr N could rely on his original 2000 tenancy agreement, granting him the right to park with no requirement to display a permit.
The Judge dismissed the claim, and also made an order striking out all other outstanding claims against Mr N. Mr Charman also agreed not to pursue any other unpaid tickets (about £2,000 worth in total).
Mr N, being self employed, was not able to show evidence of loss of earnings, so no order for costs was made.
Once again Gladstones tactics of filing multiple claims has backfired, as PACE will have incurred multiple filing costs and solicitor fees costing Mr Charman around£600 more than was actually needed.
The Parking Prankster