ES Parking Enforcement Ltd

nochargenotice

Hi All,

I have just received another letter from the "legal" firm. It contains as much information as their previous correspondence (very little). I will update again as and when this progresses.

Coupon-mad

You will be pleased to see this one was discontinued, even after a claim:

https://forums.moneysavingexpert.com/discussion/5758592

HTH

northernt01

As was my case against ES Parking, two days before the hearing!

Galaxyulz

How do i start a new thread. I am in a similar situation

KeithP

Galaxyulz wrote: »

How do i start a new thread. I am in a similar situation

Use a web browser, rather than a phone app, and you will see a New Thread button towards the top left of the thread index page.

Did you not get that guidance when signing up to the MSE forums on Friday?

nochargenotice

Hi,

Court papers have arrived. I will follow the guidance on responding as per the newbies thread. Please look out for the draft defence which I will post. Thanks all so far for your help.

nochargenotice

Hi All,

I would welcome any feedback on the below. Its similar to others that I've researched.

Specfics I also seek your input on:
1. Im not sure about section 8.2 of the below.
2. Should I email or post? There is conflicting guidance I have seen on here.


Many thanks in advance.


In the County Court
Claim Number:
Between
xxxx (Claimant)
and
xxxx (Defendant)


Defence Statement

Preliminary Matters
1. The Claimant has not complied with its obligations set out in the Practice Direction !!!8211; Pre-Action Conduct and Protocols. This prevents the Defendant understanding the claim and filing a full defence, The Claimant has confirmed the claim is for breach of contract however 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 "Parking Charge Notice" 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. Research indicated they are the subject of an active investigation by the Solicitors Regulation Authority.

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 In D3GF4P9D Private Parking Solutions London -v- Mrs A, before DJ Hammond. DJ Hammond dismissed the claim. The whole case turned on the fact that a ticket had been purchased, and therefore no further arguments were considered.

1.5 There are other similar examples which could be produced.

2. The Defendant acknowledged receipt of the postal Parking Charge Notice on the DD/MM/YYYY. The letter included a copy of the ticket displayed on the day providing the Claimant with clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and conditions ("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 Not only was the charge was not cancelled but the Claimants response in a letter dated DD/MM/YYYY rejected the appeal, note that no appeal was made, and did not respond to the Defendants requests for additional information or the Defendants request to utilise an independent Alternative Dispute Resolution (ADR) service.

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) Confirm explicitly the claim is for breach of contract and not for trespass 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, plan showing where signs were displayed, height at which signs were displayed)
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) The basis on which interest charges are 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 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 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).

5.4 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.

5.5 The term, "A valid ticket must be purchased to park on this site and be displayed clearly in your front windscreen"; in particular the meaning of "displayed clearly" 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.

5.6 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 face up), then the terms should have stated this clearly and unequivocally.

5.7 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.

5.8 The Claimant has already demonstrated to the Defendant that the rear of the ticket had on it a serial number. 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.

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, 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.

Claimant is seeking a penalty and inflated costs
8. The Claimant seeks £160 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.

8.1 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.

8.2 £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).

8.3 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.

8.4 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.

8.5 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.

8.6 The Defendant denies that the Claimant is entitled to any interest whatsoever

9. The Defendant invites the court to strike out the claim for the above grounds.
I believe the facts stated in this defence are true.




(Name) (Signature) (Date)

KeithP

Have you done the Acknowledgement of Service?


When ready, your Defence should be filed via email as described here:

Once you are satisfied with the content -
1) print your Defence
2) sign it
3) scan the signed document back in and save it as a pdf.
4) send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.

nochargenotice

KeithP wrote: »

Have you done the Acknowledgement of Service?

Thanks KeithP, yes AoS is filed.

claxtome

Some comments:

2. The Defendant acknowledged receipt of the postal Parking Charge Notice on the DD/MM/YYYY. The letter included a copy of the ticket displayed on the day providing the Claimant with clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and conditions ("T&C") - as far as they were understood.

I thought the PCN was attached to the windscreen?

Maybe change 2.2 as follows:

2.2 Not only was the charge was not cancelled but the Claimants response in a letter dated DD/MM/YYYY rejected the appeal[STRIKE], note that no appeal was made,[/STRIKE] and did not respond to the Defendants requests for additional information or the Defendants request to utilise an independent Alternative Dispute Resolution (ADR) service.

Private message me in which part of the car park the event occurred and will see if anything I discovered in my flipped ticket case could help you. Looking at when this thread was created part of my Witness Statement and Skeleton Argument won't be relevant unfortunately.

Just in case you hadn't seen from my case.
Mine too was discontinued the day before it was due to at court.