Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • Butkiss
    • By Butkiss 7th Feb 18, 7:03 PM
    • 5Posts
    • 2Thanks
    Butkiss
    Court Claim Defence
    • #1
    • 7th Feb 18, 7:03 PM
    Court Claim Defence 7th Feb 18 at 7:03 PM
    Hi,
    Hope you can help. A family member (registered keeper) has received a County Court Claim Form, and I'm helping them file their defence.

    Driver paid for parking at pay and display machine, as they had done each day for some time before and after, and displayed ticket on dashboard. No PCN was left on windscreen, and first my family member knew was when PCN to Keeper from ES Parking was received in post, just over 28 days after the alleged breach of parking conditions - says did not pay and display, or place in view.

    Family member immediately wrote to ES Parking, enclosing a copy of the pay and display ticket, but they rejected this. ZZPS, Wright Hassall, and now Gladstones have all failed to acknowledge a ticket was purchased, or provide any evidence of purported breach when requested, including with the response to the LBC.

    The Claim Form gives the briefest of particulars, just saying the driver breached the terms of parking. As we have nothing to go on as to what the breach was, I've drafted the defence in broad terms (which I will post shortly), after reading through the Newbie's post, and searching for similar cases, but I have a question.

    Should we be writing to the Courts asking them to stay the case until the Claimant complies with the Practice Direction - Pre-Action Conduct - I know we should still file the defence, but wondered if we should do this too?

    Any help would be gratefully appreciated as the deadline for filing is fast approaching.

    Thanks
Page 1
    • Videoman
    • By Videoman 7th Feb 18, 7:14 PM
    • 70 Posts
    • 11 Thanks
    Videoman
    • #2
    • 7th Feb 18, 7:14 PM
    • #2
    • 7th Feb 18, 7:14 PM
    This has happened to my friend and I am going to write a thread about it. She bought a ticket, which she still has, but received demands for loads of money for 'non payment' which she ignored... and now she has a Northants County Court Letter from ParkingEye. Her ticket has her reg no. on and the date and time to prove her defence too! She is worried sick!
    • Butkiss
    • By Butkiss 7th Feb 18, 7:43 PM
    • 5 Posts
    • 2 Thanks
    Butkiss
    • #3
    • 7th Feb 18, 7:43 PM
    • #3
    • 7th Feb 18, 7:43 PM
    Here is my first go a the draft defence. I would be grateful for any comments or pointers anyone has.

    My only concern is that I have just found my family member put in a previous response to Rep that they had complied with parking terms and had a valid ticket - so will I have to modify how I refer to Defendant and driver?

    Thanks in advance.

    IN THE COUNTY COURT BUSINESS CENTRE

    CLAIM No: XXXXXXX
    BETWEEN:

    ES PARKING ENFORCEMENT LIMITED (Claimant)

    -and-

    XX (Defendant)

    ________________________________________
    DEFENCE
    ________________________________________

    1. I am XX, the Defendant in this matter.

    2. The Defendant denies that the Claimant is entitled to the relief claimed, or any amount at all.

    3. This is my statement of truth and my defence.

    Preliminary
    4. It is admitted that the Defendant was the registered keeper of the vehicle which received this purported ‘parking charge’ on XX/XX/XXXX.

    4.1. The Particulars of Claim lack specificity and are embarrassing. The Claimant has failed to comply with the requirements of Civil Procedure Rule 16.4, as its sparse Particulars do not disclose any cause of action which could give rise to a claim.

    4.2. This Claimant has failed to set out the basis of the claim, other than to specify a breach of the terms of parking. Despite bombarding the Defendant with demands, it has not specified how the sum sought represents any fee, charge, indemnity costs or damages actually incurred, nor evidenced that any contract existed or was breached, nor shown any cause of action that can lead to any liability of the Defendant registered keeper.

    4.3. The Defendant has consequently had to cover all eventualities when defending such a ‘cut & paste’ claim, causing significant distress and denying them a fair chance to defend the claim in an informed way.

    4.4. The Defendant received various threatening letters from a number of different companies: ES Parking Enforcement Limited, a no-win-no-fee debt collection firm called ZZPS, Wright Hassall Solicitors, and finally Gladstones Solicitors. The letters were intimidating and demanded varying escalated sums of money, threatened bailiffs, and generally aimed to mislead the Defendant as to the court process, which caused significant distress to the Defendant and his family.

    4.5. The Defendant first became aware of the purported ‘parking charge’ when they received a postal Parking Charge Notice (PCN) (Notice to Keeper) on XX/XX/XXXX.

    4.6. No valid possibility of fair appeal or ADR was offered; the so-called Independent Appeals Service ('IAS') being a misnomer, set up by the same Directors as the Claimant's own Trade Body and Gladstones Solicitors who have conduct of this case. The Defendant chose not to engage with the IAS, due to this clear conflict of interests and regularly publicised reports of unfair and wholly bizarre decisions of its kangaroo court, being weighted heavily against consumers.

    4.7. The Defendant has repeatedly requested information and evidence from the Claimant and their representatives, including in the response to the Letter Before Claim. The Defendant has continually disputed that the Driver received a PCN (Notice to Driver) affixed to the windscreen on the date claimed, and has furnished the Claimant with numerous copies of the pay and display ticket which was displayed on the day.

    4.8. This provided the Claimant with clear evidence that the Defendant had acted in good faith and made all reasonable endeavours to comply with the terms and condition (“T&C”) - as far as they were understood. Therefore were a number of opportunities for the Claimant to act reasonably and cancel the charge, but it failed to do so on each occasion.

    4.9. The Claimant has therefore failed to comply with its obligations contained in paragraphs 3, 6(a) and (c), and 8 of the Practice Direction - Pre-Action Conduct, and paragraph 5.2 of the Protocol for Debt Claims which was in force on the day the Claim was issued. As such the court's attention is drawn to paragraphs 13 – 16 of the Practice Direction - Pre-Action Conduct.

    4.10. 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''.

    4.11. 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.

    4.12. On the basis of the above, the Defendant requests the court strike out the claim for want of a cause of action and disregard of pre-court protocol.

    4.13. Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
    a) Whether the matter is being brought 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 in place (e.g. copies of signage)
    c) Evidence that the Defendant was in breach of that contract, including photographs
    d) If charges over and above the initial charge are being claimed, the basis on which this is being claimed.

    4.14. As an unrepresented litigant-in-person the Defendant asks for reasonable time to file another defence and/or supplement this interim defence as may be required, once these Particulars have been filed and following a fuller disclosure of the Claimant's case.

    Pay and Display Ticket was displayed on the day of the purported ‘parking charge’
    5. A ticket was paid for and displayed so that all details could be seen, and was correctly in place when the car was locked and left parked.

    5.1. The Defendant disputes that the driver found a PCN (Notice to Driver) affixed to the windscreen on the date in question. The first the Defendant knew about the purported ‘parking charge’ was when the PCN (Notice to Keeper) was received in the post many weeks after the alleged event.

    5.2. The Claimant has provided no information or evidence as to why they believe there was a breach of the terms of parking, other than the PCN (Notice to Keeper) states that at the date and time of issue, XX:XX on XX/XX/XXXX, the driver did not pay and display a pre-paid voucher, or place it in view. However a ticket was purchased by the driver at XX:XX on XX/XX/XXXX and valid until XX:XX that day (which was prior to the alleged event), and displayed the ticket on the dashboard so that all details could be seen when the car was locked and left parked. The Defendant has no knowledge, and has seen no evidence, to show that the ticket became dislodged or flipped over, and made reasonable endeavours and complied by conduct.

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

    5.4. None of the above scenarios are within a driver's control. There has been no evidence provided by the Claimant that the ticket was not in place. However if that is the case, the driver was by that time absent from the location, and it is evident that someone else – or a factor outside anyone's control – would be to blame, and it would appear to be a case of casus fortuitus "chance occurrence, unavoidable accident". This 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.

    ParkingEye Ltd v Beavis is distinguished
    6. ParkingEye Ltd v Beavis [2015] UKSC 67 is fully distinguished from this claim, due to the completely different facts, including but not limited to:
    (i) the lack of any legitimate interest in pursuing more than an alleged unpaid tariff, in a case where damages are quantifiable (unlike in Beavis);
    (ii) The Claimant's failure to follow the effectively binding Code of Practice.
    (iii) the lack of 'keeper liability' (not tested in Beavis at all);
    (iv) the lack of relevant obligation and/or relevant contract;
    (v) the driver having purchased a valid ticket and then displayed it correctly in the car when it was locked and left parked; and
    (vi) the failure to fairly warn drivers about the penalty sum in large lettering on prominent signage, in at least as clear font as the smaller sums set out at the machine, being the point of sale where the driver would reasonably expect to read the terms of parking.

    No agreed contract to pay more than the advertised tariff
    7. The 'parking charge' (penalty sum) at this location is positively buried in small print, located high up, and is not mentioned on or next to the payment machines at all. This is contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015 (the CRA). No contract was agreed, save the agreement to pay a tariff via a valid ticket, and the Defendant can show the driver purchased a valid ticket. The Claimant has therefor suffered no loss, and any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.

    7.1. It is denied that in addition to the parking tariff, there was any agreement to pay any penalty at all. It is further denied that the driver was informed about or agreed to liability for any further, additional and unspecified 'indemnity' sums. Such added costs are unsupported by the Beavis case, where only £85 was recoverable, a sum held to include 'significant profit' and to more than cover the basic £12-£15 typical costs of a single PCN pursued with automated letters by a parking company.

    7.2. Any added costs (save for court fees) are sums that are plucked from thin air and were never incurred by this Claimant, who is put to strict proof of any 'indemnity' or damages that can possibly arise over and above the already inflated penalty, and to explain how a parking firm not in possession of land, can pursue damages at all.

    7.3. No contract to pay a £100 fine was agreed, or even known about, as the sum was hidden in small print and not declared at the point of sale (the machine). This location fails to meet the “Red Hand Rule”, as set out in the leading judgment in J Spurling v Bradshaw [1956] EWCA Civ 3, where Denning MR stated: “The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient”.

    7.4. The Beavis case reiterated the requirement for fair and open dealing, at paragraph 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

    7.5. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that must be used to form contracts. It says: ''It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge.''

    7.5.1. The Defendant refutes that there were clear and visible signs at the payment machine, from which the driver could have read and understood that there would be a disproportionate £100 fine even when they had purchased a valid ticket as described.

    7.6. The Claimant is put to strict proof they have authority to operate on site and to take action in their own name. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner, and no evidence has been produced to show that the landholder agrees and authorises that drivers paying in good faith to park, can be fined by this Claimant despite leaving a valid pay and display ticket correctly when they lock and leave their car.

    Breach of Consumer law - unfairness of terms and misleading omissions
    8. It is averred that this misrepresentation of ambiguous terms against a consumer and to their loss or detriment, is a misleading omission as defined within the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) which implemented the EU Unfair Commercial Practices Directive and says:
    “Misleading omissions: (1) A commercial practice is a misleading omission if, in its factual context:
    (b) the commercial practice hides material information,
    (c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely...”

    8.1. Further, the Defendant avers that such terms including the penalty itself and also the added 'costs' bolted onto this claim from thin air, are unfair and breach Part 2 'Unfair Contract Terms' of the CRA).

    8.1.1. The CRA was enacted after the Beavis case final hearing, and remains untested in the context of unfair parking penalty charges.

    8.1.2. This legislation requires that key terms of a contract, including price, must be assessed for fairness by a court, where those terms are not both 'prominent and transparent' (which the Defendant avers they are not). Examples of terms that may be unfair under the Consumer Rights Act include: charges hidden in small print; added costs not specified prominently and clearly in the contract; and disproportionate default charges.

    8.1.3. In the CRA at 71, it sets out the duty of court to consider fairness of a consumer contract term: “(2) The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it.”

    8.1.4. The Court's attention will be drawn to the CRA at SCHEDULE 2, a non-exhaustive list of 'Consumer contract terms which may be regarded as unfair'.

    Wholly unreasonable and vexatious claim
    9. It is submitted that the conduct of the Claimant in operating a predatory model with what appears to be deliberately ambiguous and scarce signage within hidden small print, then intimidating the Defendant with misleading threats in the pre-action stage before pursuing this claim, is wholly unreasonable and vexatious.

    9.1. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs on an indemnity basis, pursuant to Civil Procedure Rule 27.14(2)(g).

    10. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

    11. In the alternative, when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

    I confirm that the above facts and statements are true to the best of my knowledge and recollection.
    • Coupon-mad
    • By Coupon-mad 7th Feb 18, 8:33 PM
    • 54,129 Posts
    • 67,795 Thanks
    Coupon-mad
    • #4
    • 7th Feb 18, 8:33 PM
    • #4
    • 7th Feb 18, 8:33 PM
    Looks long but good and relevant. Nice first posts from a newbie who has done some work first!

    I would maybe remove some of the waffle, and I say this is waffle:
    4.13. Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
    a) Whether the matter is being brought 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 in place (e.g. copies of signage)
    c) Evidence that the Defendant was in breach of that contract, including photographs
    d) If charges over and above the initial charge are being claimed, the basis on which this is being claimed.

    4.14. As an unrepresented litigant-in-person the Defendant asks for reasonable time to file another defence and/or supplement this interim defence as may be required, once these Particulars have been filed and following a fuller disclosure of the Claimant's case.
    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.

    • Butkiss
    • By Butkiss 7th Feb 18, 8:43 PM
    • 5 Posts
    • 2 Thanks
    Butkiss
    • #5
    • 7th Feb 18, 8:43 PM
    • #5
    • 7th Feb 18, 8:43 PM
    Thanks Coupon-Mad, it's hard to know what is relevant with being so inexperienced. I'll do as you suggest and remove those paragraphs.
    • Butkiss
    • By Butkiss 7th Feb 18, 11:56 PM
    • 5 Posts
    • 2 Thanks
    Butkiss
    • #6
    • 7th Feb 18, 11:56 PM
    • #6
    • 7th Feb 18, 11:56 PM
    Hi,

    Reading through the posts, I believe you can submit a defence via email (to the CCBC email address) as a PDF email attachment, making sure to call the CCBC the following day to check they have received it. Do I have to complete and attach any of the forms received with the claim when I send the defence, or do I just write a short email containing the Claim details?

    I've read through all the Court documents and the info on GOV.UK etc, and it's definitely not clear!

    Thanks in advance
    • KeithP
    • By KeithP 8th Feb 18, 12:22 AM
    • 5,721 Posts
    • 4,442 Thanks
    KeithP
    • #7
    • 8th Feb 18, 12:22 AM
    • #7
    • 8th Feb 18, 12:22 AM
    Yes, just send your defence statement to ccbcaq email address as a pdf attachment.
    Nothing else needs to go with it. Just make sure it is signed.

    So the process as advised here is
    1) print the defence
    2) sign and date the printed copy
    3) scan it back in and save as a pdf
    4) email as an attachment to CCBCAQ.

    Ensure the email title contains your name, the claim number and the word DEFENCE.

    It wouldn't hurt to put a few polite words in the body of the email too.
    Last edited by KeithP; 08-02-2018 at 11:16 AM.
    .
    • Butkiss
    • By Butkiss 8th Feb 18, 9:03 AM
    • 5 Posts
    • 2 Thanks
    Butkiss
    • #8
    • 8th Feb 18, 9:03 AM
    • #8
    • 8th Feb 18, 9:03 AM
    Thanks KeithP
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

403Posts Today

4,599Users online

Martin's Twitter