County court claim for SIP ticket

Also, when I acknowledged the claim via MCOL, I checked the box to say I would defend all of the claim, but not the box that said I intend to contest jurisdiction - should I have checked this? I'm really unsure and cannot find the aforementioned post in the newbies thread anymore to check, even having scoured every page!?

I'm so glad I'm not going insane - I thought I couldn't see it!

Anyway, I have started my first defence draft if you guys could offer any advice I just have a few queries about it...

a) as I have mentioned the carpark is no longer there and is about to be built on, does this contradict the comments regarding the signage being inadequate? Should I stick to the inadequacy or go down the route of 'there is no longer any proof of original T&Cs as all signage has been removed'?

b) Regarding the land ownership, I have done a search and can see that the land has two search results - one is a freehold and the other is a leasehold. I am happy to purchase the plans and registers if this is what is needed - however I can't be sure that SIP do not own the land without doing so. In this case, is it risky to include this part of the rebuttal?

Here goes....

I am XXX, Defendant in this matter and I assert that the Claimant has no cause for action for the following reasons:

1.It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at xxxxxx.

3. The PCN stated the contravention as “No ticket displayed.” This cannot be a contravention when a driver uses the Pay by Phone option as the driver in this case did when paying a regular monthly charge over a period of twelve months to park in the car park for 30 days at a time.

4. It is denied that:

a. A contract was formed, and it is further denied that any contravention of ''no ticket displayed'' occurred or can have occurred when using the Pay by Phone option, the failure of which was not communicated to me nor was it within my control. Even if a contract was potentially formed it was frustrated by the unexpected and uncommunicated failure of the Claimant's app, and it is trite law that no party can be held liable for breach to another under such circumstances of frustration of contract.

b. There was any agreement to pay a parking charge.

c. That there were Terms and Conditions prominently displayed around the site which communicated any additional punitive parking charge (effectively a private 'fine') in large lettering, in a clear and concise way, on a par with the tariff signs where the fees were advertised in the largest font. By contrast, the 'parking charge' is positively buried in small print, contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015.

d. That in addition to the parking charge there was any agreement to pay additional and unspecified additional sums, which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.

e. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

f. The Pay by Phone app, being indisputably an offer of a 'distance contract', complied with the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, which says:

''Confirmation of distance contracts: 16.—(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
(2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
(3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.''

5. It is further denied that the Defendant is liable for the purported debt.

Rebuttal of Claim
6. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.
a. Payment for parking was made monthly via mobile app using a cashless system provided by PayByPhone.
b. This is a distance contract which requires certain information to be supplied in advance.
c. The service makes no provision for the printing of a ticket to display.
d. The Defendant paid monthly sums of £45.30 via the PayByPhone app in exchange for parking on the land for 30 days from payment.
e. The payment channel promised to notify the user before the expiry of each monthly ticket in order to renew the parking charge for a further 30 days, something which regularly failed to happen. As such the Defendant believed the necessary payment had been made.
f. The defendant has invoice receipts from the PayByPhone app from 5 monthly payments for this car park totalling £228.80, as well as 4 daily payments of £2.30 each in addition, proving the defendant was regularly paying the charge for this car park and was not intentionally setting out to avoid payment. The defendant can also provide further bank statements spanning a 12 month period, as the PayByPhone app only records the previous 10 payments.
g. The regular failure of the payment service to notify payment and often to take payment at all is due is not the Defendants responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.
In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.
h. When the PCN was noted the app was checked which showed no record of the payment or notification of its failure. Successful payment for the parking is shown at 8.59am the day after the alleged breaching of terms. The PayByPhone app unfortunately does not show any more than 10 transactions, meaning the defendant does not have access to a receipt for when the previous months agreement expired.
i. The car park was used again for the same times the following four months and has been used before, always being paid for.
j. The car park in question is no longer owned, managed or controlled by SIP and has since had planning permission agreed for residential properties.

7. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

8. The Defendant denies that they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
a. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.

9. The signage on this site was inadequate to form a contract with the motorist.
a. The car park is in fact wasteland, with no marked bays and no clear signage as to where the car park starts and ends, whilst being completely unmaintained, with large pot holes and craters in the ground, regularly causing damage to the vehicles parked there.
b. The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.
c. The size of font of the prices advised for parking is much larger than the font of the contract and the offer was not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.
d. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.
e. The PayByPhone signage specifically states that there is “No need to display a ticket in your car” therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA.
f. If the Claimant wanted to impose a condition to continuously display permits, then they should have drafted clear instruction to that effect, requiring specific terms of how to 'continuously display' when a paper ticket has not been issued or there is no contravention.
g. Where contract terms have different meanings, as in this instance when a paper ticket was not issued due to the chosen method of payment, then Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt.
The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

10. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £100, to a charge of £100 and now to £167.69. The charge is steep considering a 24 hour stay in this car park was priced at just £2 at the time. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.
a. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.
b. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £167.69. This appears to be an added cost with no apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
b. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

Non-disclosure of reasonable grounds or particulars for bringing a claim:
11. SIP Parking Ltd are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in
their own name and that they have no rights to bring action regarding this claim.
a. The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.
b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
c. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party
agent, the Claimant may not pursue any charge
d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. 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 vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

12. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:
‘The driver of the vehicle registration
XXXX XXX incurred the parking
charge(s) on XX/XX/2016 for breaching the
terms of parking on the land at xxxx.
The Defendant was driving the Vehicle and/or
is the Keeper of the Vehicle
AND THE CLAIMANT CLAIMS
£160.00 for Parking Charges / Damages and
indemnity costs if applicable, together with
interest of £7.69 pursuant to s69 of the
County Courts Act 1984 at 8% pa, continuing
to Judgement at £0.04 per day’

13. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
a) The Claimant has disclosed no cause of action to give rise to any debt.
b) The Claimant has stated that a parking charge was incurred.
c) The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
d) The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence.
It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The Particulars of Claim are incompetent in disclosing no cause of action.

14. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’

15. The Defendant researched the matter online, and discovered that the Claimant is a member of the Independent Parking Committee (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the IPC. This research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. These findings indicate a conflict of interest. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the Solicitors Regulation Authority Code of Conduct.

16. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.

17. The Defendant believes the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

18. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.

19. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

20. The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

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