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  • FIRST POST
    • rusty1984
    • By rusty1984 13th Jan 18, 4:57 PM
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    rusty1984
    Recieved Claim form after succesful set aside
    • #1
    • 13th Jan 18, 4:57 PM
    Recieved Claim form after succesful set aside 13th Jan 18 at 4:57 PM
    I was wondering if any one is able to give advice on my current situation. I'll do my best to summarise as briefly as possible, but if you need any further details let me know.

    In Febuary i recieved a PCN at a private car park for a flipped over parking ticket, the ticket was valid with my registration number on it and i still have it. I appealed directly to the opperator as instructed, and recieved no response. I wrongly assumed at the time that the appeal had been successful and forgot all about it, a couple of months later i called them to confirm this and they told me the appeal was unssuccessful and that they had written to me, i provided them my email address and they sent the a coppy of the letter which had the house number missing from the address. In heindsight i realise that i should have contacted them much sooner as by this time it was too late to appeal via IPC and i had missed their deadlines for the payments.

    Unknownst to me after this they continued to pursue me with the inccorect address and in October, without out any prior communication I recieved a letter from bailiffs (also missing my house number) stating that a default CCJ had been taken out against me and that i now owed around £260.

    Following this I explained to the bailiff that the PCN was in dispute and contacted the court. I submitted an application for a set aside with a detailed draft defence costing £255 which was eventually successful as i could show that i had recieved no prior communication and the claiment didn't show up at court. I wrote to Gladsone's and the parking opperator informing them of the set aside and was hoping that this would be the end of it.

    That brings me to this week when i recieved a 1 line letter from Gladstone's along with a 'refference only' copy of the original claim form dated July along with a response pack. I tried calling the County Court Business Centre yesterday to confirm whether or not this is a new and legitimate claim but couldn't get through, I plan to try again first thing on Monday.

    In the mean time I was wondering if anyone else has experienced this before and whether this is normal procedure following a set aside or just another attempt to scare me into paying their unreasonable demands? I'm willing to defend my case and potentially put in a counter claim for the original cost of the set aside application but the letter from Gladstones is pretty vague and not clear whether it requires a response

    Any advice would be much appreciated
Page 1
    • Coupon-mad
    • By Coupon-mad 13th Jan 18, 5:08 PM
    • 52,907 Posts
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    Coupon-mad
    • #2
    • 13th Jan 18, 5:08 PM
    • #2
    • 13th Jan 18, 5:08 PM
    Following this I explained to the bailiff that the PCN was in dispute and contacted the court. I submitted an application for a set aside with a detailed draft defence costing £255 which was eventually successful as i could show that i had received no prior communication and the claimant didn't show up at court.
    Good.


    I'm willing to defend my case
    Good, and defend is what you must now do, as this is rewound back to that stage and Gladstones appear to be going ahead again. Are they at least including a house number now?


    and potentially put in a counter claim for the original cost of the set aside application
    You need to read post #2 of the NEWBIES thread and other set aside threads that are now defended cases. You do NOT put in a 'counter-claim' for costs, that's wrong. You just list and claim your costs as part of the normal defending process, by later preparing a 'costs schedule' before the actual claim hearing, later. Example in the NEWBIES thread.


    but the letter from Gladstones is pretty vague and not clear whether it requires a response
    True, but surely the Order you got from the Court after the Set Aside, will have spelt out who has to do what and by when; e.g. they normally say that the Claimant is ordered to serve particulars by xx/xx/18 (which G's have now done) and that you must then submit a defence/amend your defence in response, and file that with the Court and Claimant's solicitors within (maybe?) 14 days.

    So what does the Set Aside Court Order say? Hope they posted it to the right address!
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • beamerguy
    • By beamerguy 13th Jan 18, 5:13 PM
    • 6,747 Posts
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    beamerguy
    • #3
    • 13th Jan 18, 5:13 PM
    • #3
    • 13th Jan 18, 5:13 PM
    Gladstones without doubt are the worst solicitors
    in the UK .... VERY VERY INCOMPETENT

    Did you claim the £255 as costs for your set aside ??

    Whilst they can try again, they must now follow the
    new procedure introduced 1st October 2017 which clearly
    defines the actions they are obliged to follow by law.
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Quentin
    • By Quentin 13th Jan 18, 5:40 PM
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    Quentin
    • #4
    • 13th Jan 18, 5:40 PM
    • #4
    • 13th Jan 18, 5:40 PM
    Your successful set aside didn't mean "that was the end of it"

    Just that the judge agreed you could start again and defend the claim properly.

    Them reissuing the claim means you start the whole court process again from scratch.

    Lots of advice on how to deal with this in #2 of the Newbies FAQ thread near the top of the forum

    In particular check the process on how to submit an aos. This buys you an extra 14 days to get your defence sorted
    Last edited by Quentin; 13-01-2018 at 8:45 PM.
    • rusty1984
    • By rusty1984 13th Jan 18, 10:44 PM
    • 14 Posts
    • 3 Thanks
    rusty1984
    • #5
    • 13th Jan 18, 10:44 PM
    • #5
    • 13th Jan 18, 10:44 PM
    Ha yes they are at least now sending to the correct address.

    I’ll have a good read through the set aside section in the newbies thread as you suggest, sounds really helpful.

    With regards to the order after set aside it’s embarrassing to admit that my housemate accidentally binned it so I no longer have it for reference but It was very brief. something along the lines of ‘set aside granted due to defendant having not received claim form’ there were no instructions or deadline dates for next steps as such.

    I had a quick read through the updated procedures earlier, and noticed it states there should be a letter before action, and reasonable attempt to resolve before going to court. Does this still apply in the same way following a set aside? its pretty clear they haven’t done either..

    Like an idiot I didn’t realise I could actually request the application fees be reimbursed at the set aside hearing and figured by now I’ve missed my chance.

    The system seems pretty unevenly weighted in favour of these companies, only £25 to bring about a dodgy claim against someone while it’s £255 just to apply to have an unfair ccj removed...

    Thanks for all the quick responses!
    • Coupon-mad
    • By Coupon-mad 13th Jan 18, 10:47 PM
    • 52,907 Posts
    • 66,430 Thanks
    Coupon-mad
    • #6
    • 13th Jan 18, 10:47 PM
    • #6
    • 13th Jan 18, 10:47 PM
    Like an idiot I didn’t realise I could actually request the application fees be reimbursed at the set aside hearing and figured by now I’ve missed my chance.
    No you haven't, because G's are proceeding then the £255 gets added to your costs schedule for the actual hearing.

    Ring the local court and ask for another copy of the Order, or maybe go in with the Gladstones letter in your hand and ask a helpful Court Clerk to look at what the Judge directed, say you are 'confused' and ask them to tell you what your deadline is now, and whether the court has also received this 'copy claim form' from G's.

    If you can. I would go in and ask, urgently. You may only have 14 days or less now.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • rusty1984
    • By rusty1984 14th Jan 18, 12:14 PM
    • 14 Posts
    • 3 Thanks
    rusty1984
    • #7
    • 14th Jan 18, 12:14 PM
    • #7
    • 14th Jan 18, 12:14 PM
    Thank you for your advice, unfortunately I can’t get to the courts till Wednesday due to work commitments but I’ll certainly give them a call and ask everything you’ve suggested. It was passed on to my local county court for the set aside hearing, is it also worth me contacting CCBC as well?
    • rusty1984
    • By rusty1984 15th Jan 18, 10:02 AM
    • 14 Posts
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    rusty1984
    • #8
    • 15th Jan 18, 10:02 AM
    • #8
    • 15th Jan 18, 10:02 AM
    Okay, i have just spoken to county court and i have some more detail if somewhat vague.

    They are saying that Gladstone wrote to them requesting a copy of my defence from the set aside, and despite the fact that my witness statement included a details regarding defence within my application for set aside the court are saying that they don't have one on file. following on from this they wrote to me on the 13th (letter not delivered yet) requesting that i supply a defence immediately. I'm guessing that i will receive the letter from the court either today or tomorrow.

    Here is the section copied from my witness statement: is this enough or do you have advice of other details i should include? the carpark itself is near where i work so i plan to go and take pictures of all signage on my lunch break and include a section stating that signage does not adhere to guidance in the IPC code of conduct.

    7. In relation to the claim against me, (please see Particulars of Claim submitted by the claimant [EXHIBIT F]): on 09/02/2017 I purchased a valid ticket [EXHIBIT C] to park in Eastside Car Park Birmingham and displayed the ticket clearly visible through my windscreen. On returning to my car there was a Parking Charge Notice issued by Euro Parking Services [EXHIBIT D] affixed to my windscreen stating that at the time of issue the car was parked without clearly displaying a valid ticket.
    8. I accept that if the details of the ticket were unclear to the parking officer then he/she would have had no other choice at the time than to issue a PCN.

    9. On 29.02.2017 I posted an appeal to Euro Parking Services as instructed on the PCN [EXHIBIT D]. My appeal contained a scanned copy of my Parking ticket [EXHIBIT C] along with several arguments as to why I believed the PCN to have been unfairly issued.

    10. After receiving no response I called Euro Parking Services on 8th May to check that my appeal was successful. They informed me that it had been rejected. I explained that I had received no response and gave them my email address so they could send me a copy of the rejection letter [Exhibit E]. By this date the 21 day deadline for filing a second appeal to the IAS had passed, as had the stated deadline for payment (30/03/2017).

    11. Once the Default Judgment has been set aside I will defend the claim on a number of grounds. Including that logic would dictate that if it can be proven that a valid ticket was purchased upon entering the car park then this action alone is confirmation of agreement to the terms and conditions of using the site.
    12. I would also argue that the quality and angle of the photographic evidence supplied by the claimant in Exhibit F is such low resolution that it is not submissible as proof of the clarity of the details on the ticket. If the claimant were to supply high resolution versions of these images it may be possible to identify the serial number which appears on both sides of the ticket confirming that this is the same ticket as seen in [EXHIBIT C] and therefore placed on the dashboard with the intention of displaying it clearly.The photos also fail to show the car in with the context of the carpark in question and therefore could have been taken anywhere at any time.

    Since the ticket has no adhesive on either side there is no way to ensure that it will not move due to temperature, weather or other conditions once the driver has left the vehicle, an therefore unfit to meet the terms and conditions of parking.

    13. Respectfully I would ask the judge to consider that if the parking operator offers an appeals process, then for what other reason does it exist other than for defendants to provide evidence of valid tickets? If a valid ticket is not acceptable evidence to the parking operator then what else possibly can be?

    As always your knowledge and advice would be much appreciated
    • rusty1984
    • By rusty1984 15th Jan 18, 10:03 AM
    • 14 Posts
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    rusty1984
    • #9
    • 15th Jan 18, 10:03 AM
    • #9
    • 15th Jan 18, 10:03 AM
    Just to add, the clerk confirmed over the phone that the order contained no instructions for either myself to submit a defence or for the claimant to respond in anyway...
    • The Deep
    • By The Deep 15th Jan 18, 10:16 AM
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    • 6,734 Thanks
    The Deep
    If you do have to defend, consider using the "de minimus" argument, and asking or costs for unreasonable behaviour.

    https://uk.practicallaw.thomsonreuters.com/1-382-3382?transitionType=Default&contextData=(sc.Defaul t)&firstPage=true&bhcp=1

    http://insurance.dwf.co.uk/news-updates/2014/12/what-amounts-to-unreasonable-behaviour-in-the-small-claims-track/


    .
    Last edited by The Deep; 15-01-2018 at 10:22 AM.
    You never know how far you can go until you go too far.
    • Quentin
    • By Quentin 15th Jan 18, 11:41 AM
    • 34,146 Posts
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    Quentin
    A ws is not the same as a " defence"!!
    • rusty1984
    • By rusty1984 15th Jan 18, 1:30 PM
    • 14 Posts
    • 3 Thanks
    rusty1984
    Ah I see, my mistake.

    Since it is the court who are requesting that i supply a defence immediately I am aiming to put something together and get it to the court within the next 24 hours.

    I'm planning to use the BMPA Template generator as guide, editing it to remove the points which don't apply and include more detail on the following:

    - a copy of my valid parking ticket which has my reg printed on it.
    - A set of images of the signage on site which i believe doesn't comply with the IPC regulations in terms of lighting , size and placement, and that the terms and conditions, where legible, don't clearly indicate that PCNs will be issued and enforced regardless of a valid ticket being purchased therefore cannot form a contract.
    - Photographic evidence originally sent by the claimant which is not high enough resolution to determine the placement of the ticket, nor do they show the car in the context of the carpark therefor not proving that i was parked at the location at the time. If the Claimant holds more detailed photgraphs then in theory they should show a ledgible serial number on the reverse which can be matched to my ticket.
    - the fact that the claimants particulars are so vague they do not state in what way in which i broke the supposed contract
    - request that the claimant provide evidence that they have an up to date contract with the landowner to issue such charges
    - Reference the Canturbury council tribuneral where Adjudicator John O'Higgins concluded that the authority had a legal duty to consider appeals and supporting evidence in 'flipped- over' PCN cases.
    - argue that since at no point have i received from Gladstones a letter before action that they have failed to attempt to settle the matter outside of court and therefore have not followed correct procedure.
    - The de minnus argument
    - Indicating the costs already incurred to myself in the form of Set aside application, time off to attend the hearing where the claimant didn't show, and considerable time and stress incurred in researching the law as a lay person

    do you think this will suffice, I'll upload my full defence once i've put it together but i may not be able to do this until this evening as i'm currently at work
    I
    • nosferatu1001
    • By nosferatu1001 15th Jan 18, 1:59 PM
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    nosferatu1001
    A defence is a series of legal arguments. It is in itself not evidence, and you do not reference evidence from your defence. Those are all ref. from your WS, which IS evidence (as are phtoos, etc)

    So you need to concentrate on LEGAL arguments - no liability due to... is an argument.
    • rusty1984
    • By rusty1984 15th Jan 18, 2:08 PM
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    rusty1984
    Thanks for clarifying this, so there is no need for me to attach any supporting images, copies of tickets etc, when i submit the defence to the court?

    In the case of the ticket would i just state that i had/have a valid ticket for the day in question and that a copy was supplied in my appeal letter and therefore did not park in contradiction to any supposed terms or conditions for using the site.
    • KeithP
    • By KeithP 15th Jan 18, 2:30 PM
    • 5,164 Posts
    • 3,631 Thanks
    KeithP
    Thanks for clarifying this, so there is no need for me to attach any supporting images, copies of tickets etc, when i submit the defence to the court?
    Originally posted by rusty1984
    Please re-read post #13.


    In the case of the ticket would i just state that i had/have a valid ticket for the day in question and that a copy was supplied in my appeal letter and therefore did not park in contradiction to any supposed terms or conditions for using the site.
    Originally posted by rusty1984
    No legal argument there. That's witness statement stuff.
    .
    • nosferatu1001
    • By nosferatu1001 15th Jan 18, 2:31 PM
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    nosferatu1001
    No, because that is what your WS contains. And the WS for a hearing is almost certainly different to the set aside WS - or at least expands upon it.

    YOu can state that, if that is true of course. It depends on the exact reason given for a ticket.
    • rusty1984
    • By rusty1984 15th Jan 18, 3:06 PM
    • 14 Posts
    • 3 Thanks
    rusty1984
    Okay, i clearly need to read some more example defences to get a better idea. lucky to have this forum for guidance!

    The particulars of the claim just state:

    The driver of vehicle registration XXXXX (the 'Vehichle) incurred the parking charge(s) on XXXXX for breaching the terms of parking on the land at XXXXXXX car park.

    The defendant was driving the vehicle and/or is the keeper of the vehicle.

    The PCN says: parked without clearly displaying a ticket
    • rusty1984
    • By rusty1984 15th Jan 18, 6:27 PM
    • 14 Posts
    • 3 Thanks
    rusty1984
    I'm back from work now and no letter from the court yet which is good but i wanted to try and get a head start. I found a another thread that seems similar circumstances to mine and while i feel bad piggy backing on everyone elses hard work it seemed as good a place to start as any. I've edited to remove areas which don't aply to me and amended where neccessary.

    As always your knowledge and feedback would be much appreciated.
    I'm hoping that there is enough in there to Detter Glady's from pursuing any further.
    • rusty1984
    • By rusty1984 15th Jan 18, 6:28 PM
    • 14 Posts
    • 3 Thanks
    rusty1984
    Draft Defence
    Preliminary Matters
    1. The Claimant has not complied with its obligations set out in the Practice Direction – Pre-Action Conduct and Protocols. This prevents the Defendant understanding the claim and filing a full defence. The Claimant has not explained what it claims the terms of that contract were or how it was entered into. No copy of the alleged contract has been provided to the Defendant.

    1.1 The Particulars of Claim breach the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached and breach CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a “breaching the terms of contract” with no further explanation; the Claimant thus fails to establish a cause of action which would enable the Defendant to prepare a specific defence; they are not clear and concise as is required by CPR Part 16.4 1(a).

    1.2 The Claimant and their solicitor are known to be a serial litigants and issuer of speculative claims, using “template” particulars of claim, with no due diligence.

    1.3 In C3GF84Y2 (Mason, Plymouth County Court) [2016] 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 a claim was struck out without a hearing, due to Gladstones’ template particulars being incoherent, failing to comply with CPR16.4, and ‘’providing no facts that could give rise to any apparent claim in law’’.

    1.4 On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failed to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the claim was struck out.

    1.5 There are other similar examples which could be produced.

    2. The Defendant appealed the Parking Charge Notice on the XX/XX/XXXX explaining what had happened and included a copy of the ticket displayed on the day which has the car registration number printed on it providing the Claimant with clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and condition (“T&C”) - as far as they were understood.

    2.1 This was an opportunity for the Claimant to act reasonably and cancel the charge.

    2.2 The charge was not cancelled, the appeal was addressed incorrectly and was not delivered to the defendant. When the defendant called the claimant on the XXX and provided them with an email address to send correspondence to they sent the appeal response, but no further attempts to communicate either ascertain a correct address or pre-warn of intended court action including no letter before action.

    2.3 The above constitutes a direct breach of Practice Direction - Pre-Action Conduct and Protocols; specifically - paragraph 3 (Objectives), 6(a) and (c) (Steps before issuing a claim) and 8 (Settlement and ADR). As such the court’s attention is drawn to the sanctions set out in paragraphs 13 - 16.

    2.4 The Claimant’s conduct is also a direct breach of the International Parking Community (“IPC”) Code of Practice (“CoP”), Part B, Section 6. The CoP is effectively regulation for the private parking industry, as found by the Supreme Court in the Beavis Case.

    3. The Defendant requests the court strike out the claim for want of a cause of action and disregard of pre-court protocol.

    3.1 Alternatively, the Defendant asks that court makes an order requiring the Claimant to file compliant Particulars, to include at least the following;
    a) Whether the claim is for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
    b) A copy of any contract it is alleged was entered into and how (e.g. copies of signage)
    c) Whether the Claimant is acting as Agent or Principal, together with documents they rely on in having standing to bring this claim
    d) If charges over and above the initial charge are being claimed, the basis on which this is being claimed and calculated
    e) If Interest charges are being claimed, the basis on which this is being claimed

    3.2 Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

    Background
    4.The Defendant is the authorised registered keeper and the driver in question at the time of the alleged incident.

    The Defendant denies liability for the entirety of the claim for the following reasons:

    5. If the claim is brought for breach of contract, the Defendant paid and displayed a ticket so all details could be seen, and was in place the right way up when the car was locked and left parked. The Defendant has no knowledge of the point at which the ticket flipped over or why, but made all reasonable endeavours, and complied by conduct.

    5.1 The Defendant cannot be responsible for the possibility that:
    a) A gust of wind may have later flipped the flimsy paper over, despite the windows & doors being locked.
    b) The employee of the Claimant may have caused the ticket to flip over, perhaps accidentally when leaning across the car or pushing between vehicles. No suggestion of foul play is intended.
    c) A passer-by may have leaned on the car, when squeezing between the small bays to get to their own vehicle.

    5.2 None of the above scenarios are within a driver’s control (the Defendant was by that time, absent from the location) and it is evident that someone else – or a factor outside anyone’s control – was to blame. This appears to have been a case of casus fortuitus “chance occurrence, unavoidable accident”, which is a doctrine that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties renders the contract frustrated.

    5.3 In July 2015 move by Canturbury City Council, which prevented drivers from appealing when tickets had flipped over on the dashboard, was found by Adjudicator John O’Higgins to be unlawful by a tribunal and concluded that the authority had a legal duty to consider appeals and supporting evidence in ‘flipped- over’ PCN cases.



    5.4 Notwithstanding the above, the flimsiness of the ticket certainly played its part, and that is within the control of the Claimant, who must be well aware of the problem, which has become known as ‘’fluttering tickets’’. Because they profit from drivers’ misfortune caused by their own tickets’ inability to withstand British weather, it is averred that this Claimant wilfully failed to address this issue (e.g. by adding sticky backing to the ticket, allowing it to be fixed in place).

    5.5 The Court is invited to consider the fairness of the position in this case, giving due consideration to the flimsiness of the piece of paper provided, which appears to cause significant imbalance in the rights of a consumer, to their detriment, and the Defendant relies on Section 62 of the Consumer Rights Act.

    5.6 The term, ‘Parking is permitted for: vehicles fully displaying a valid pay and display ticket with all details clearly visible inside the front windscreen’ in particular the meaning of ‘clearly visible’ is not transparent per Section 68 of the CRA 2015. Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that any uncertainty must be resolved in favour of the consumer.

    5.7 A valid ticket was displayed in the front windscreen of the Defendant’s vehicle. If the Claimant wanted to impose a different term to require the ticket to be displayed in a prescribed manner (eg continuously face up), then the terms should have stated this clearly and unequivocally, along with a clear warning that charges may be brought regardless of the purchase of a valid ticket.

    5.8 The Claimant does not dispute that the Defendant purchased a ticket, that it gave him a licence to park for the entire day and that it was displayed on the dashboard at all times.

    5.9 In the appeal the Defendant has already demonstrated to Claimant the that the rear of the ticket had on it a serial number which matches the serial number on the front. The purpose of the serial number must have been so that the Claimant could trace the details of pay and display ticket and must indicate that the Claimant accepted the possibility that the ticket could flip over, unknown to the driver. At the very least any photographic evidence held by the claimant could be used to verify that the ticket in the photo matches the ticket submitted with the appeal.

    Limited contract
    6. The signage on this site is inadequate to form a contract to pay £100 or any sum at all. It is barely legible, unlit in the dark hours of the winter months, placed in such locations distant from the ticket machine, behind parking bays and high upon walls and fences making it difficult to read and it is not believed that such terms were proclaimed with the tariffs at the machine. Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which the Claimant is a member), clearly obliges the Claimant to display legible signs in appropriate locations.

    Locus standi
    7. The Claimant has failed to establish its legal right to bring a claim either as the landholder or the agent of the landholder and therefore would have no locus standi to bring this case per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd.

    7.1 Parking Eye Ltd v Beavis [2015] UKSC 67 showed that the Claimant does not have a wider legitimate interest extending beyond the prospect of damages, as their interest is only limited to the recovery of compensation for the alleged breach of contract, and no commercial interest has engaged as to the control of parking as the Defendant had paid for a licence to park.

    8.1 In addition, the Claimant is in breach of various statutory and regulatory provisions set out in the Consumer Protection from Unfair Trading Regulations 2008 (Regulation 3 – a breach of which is an offence under Regulation 5), the Consumer Rights Act 2015 (Sections 62 and 68 and Schedule 2) and the Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013 (Regulation 13). Again, the court should not lend its aid to the Claimant in founding a claim based on its unlawful and/or immoral conduct.

    Claimant is seeking a penalty and inflated costs
    9. The Claimant seeks £163.86 in addition to court fee of £25 and legal Representative’s costs of £50 which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown he did purchase a valid ticket and the Claimant has suffered no loss, and because any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.

    9.1 The Claimant is under a duty to mitigate its loss. It failed to do so by ignoring the serial number on the rear of the ticket which would have enabled it to establish that the Defendant had paid for a full day’s parking.

    9.2 £60 of the £160 ‘parking charge’ (for which liability is denied) the Claimant has untruthfully presented as contractual charges, which amounts to double charging, which the PoFA 2012 Schedule 4 specifically disallows. Any term allowing for the Claimant to pursue such additional charges must be void for uncertainty. In any event, such charges must be covered by the addition of the discounted element of the charge after a driver has failed to pay within 14 days (£40).

    9.3 There is no possible commercial justification for the Claimant to found an action based on such a trivial error. The Beavis v ParkingEye [2015] Judges at the Court of Appeal stated that in that case there was a commercial justification as it was free car park and the Claimant needed to prevent overstays of the free 2 hour stay. Whereas in this case the car park is a Pay and Display car park where revenue is earned from the purchase of tickets for an agreed period of time.

    9.4 The Claimant has claimed a £50 legal representative’s cost on the claim form, despite being well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. The Defendant also has the reasonable belief that the charges have not been invoiced and/or paid and that due to the sparse particulars the £50 claimed for filing the claim has not been incurred either. This appears to be an attempt at double recovery as a way to inflate the value of the claim. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.

    9.5 The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; “JUDGMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS”.. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

    9.6 The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.

    It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.
    As such, I am keeping a note of my wasted time/costs in dealing with this matter which currently exceed £255 for the set aside application for which I will seek to be reimbursed by the claimant should this matter go to a further hearing.

    10. The Defendant invites the court to strike out the claim for the above grounds.
    • rusty1984
    • By rusty1984 17th Jan 18, 8:16 AM
    • 14 Posts
    • 3 Thanks
    rusty1984
    Apologies for going quiet, I was planning to post an update when the letter comes through from the court but it hasn’t been delivered yet. They told be it was posted it on Saturday so I’m expecting it to arrive today, but I’m planning to call the court and just double check the address they’ve sent it to following all the trouble I’ve had previously with wrong addresses etc...
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