ES Parking Enforcement Ltd

nochargenotice

Hi All,
Please see below some amended paragraphs of the defence (I have tried to use bold and strike through to show altered text, so readers dont have to go through both versions).

Main changes are:
1. References to the defendant as driver have been removed.
2. Reference to limited contract removed (I have never seen a copy of the contract or signage).

Any comments gratefully received.

Thanks.

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


5. If the claim is brought for breach of contract, the Defendant has demonstrated that a ticket was paid for and displayed. [STRIKE]a ticket so[/STRIKE] All details of the ticket 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 all reasonable endeavours were made. [STRIKE]and complied by conduct.
[/STRIKE]


5.2 None of the above scenarios are within a driver's control [STRIKE](the Defendant was by that time, absent from the location)[/STRIKE] 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.

5.7 The Claimant does not dispute that [STRIKE]the Defendant purchased[/STRIKE] a ticket was purchased and that it gave[STRIKE] him[/STRIKE] a license to park for the entire day and that it was displayed on the dashboard at all times.

[STRIKE]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.
[/STRIKE]

8. The Claimant seeks £160 which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown [STRIKE]he did purchase[/STRIKE] a valid ticket was purchased 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 [STRIKE]the Defendant had paid for [/STRIKE]a full day’s parking was paid for.

Coupon-mad

a license to park

licence.

Like 'advise and advice', and 'practise and practice', it only takes 's' if it's a verb.

claxtome

For the forum benefit:

nochargenotice, did indeed PM me and I found out that the area of the car park in this case is similar to where my alleged offence occurred.

This means the Landowner titles I paid for in my case are relevant and can be used to refute if/when the parking contract from ES is produced as evidence.

The Opening post of my 'flipped ticket' thread has a link to the landowner titles.

nochargenotice

Hi All,


Is it acceptable to email the court asking for an oral hearing after Gladstones have made a request for special directions (on papers) hearing?



The wording suggested on this site was not included on the DQ.

Thanks.

claxtome

Have you had the official DQ from the court?
It is my assumption you haven't and have just received a copy of the Gladstone's one.

It is always the forums suggestion to ask for an oral hearing.

Coupon-mad

Just put a covering letter with your N180 (from the court). Not the one Gladstones sent.

Search the forum for Gladstones straightforward to find this covered for years.

nochargenotice

Thanks claxtome and Coupon-mad.

I missed the request for an or hearing off the official DQ from the court, but will write to the court separately now.

Thanks.

nochargenotice

Hi All,


I would welcome any comments on the below. This is not the final version but gives the general format and content. It is heavily borrowed from claxtome's similar case.


Thanks in advance.




WITNESS STATEMENT
__________________________

I, XXXXXXXXX of XXXXXXXXX am the defendant in this case.

1. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief.

2. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.


I am an unrepresented consumer who has never attended the county court
before.




3. It is admitted that I was the authorised registered keeper of the vehicle in question at the time of the alleged incident. However as I am not the only driver of this vehicle I cannot be presumed to be the driver in the absence of any evidence. The claimant has produced no evidence I was the driver and the claimant also failed to state in the Notice To Keeper that the creditor does not know both the name of the driver and a current address for service for the driver. It just wrongly presumes that I was the driver.

4. On XXX the Claimants solicitor contacted me by letter, advising of their intention to issue legal proceedings. The letter was not compliant with PD pre-action protocol. On XXXX I replied requesting information that should have been provided. The Clamiants solicitor replied on XXX giving no further information. Again I replied on XXX and the Claimants solicitor responded on XXX. At no time have clear concise and coherent particulars of claim been provided to me. This is not compliant with the PD pre-action protocol and the lack of information is to my significant detriment as an unrepresented Defendant with no experience in the Small Claims procedure. (See exhibits XX, XX)


5. A ticket was purchased (See exhibit XX). The ticket was valid for the time and date that the Claimant has identified (See exhibit XX). The ticket did not have a sticky back and there was no way of keeping it securely on the dashboard. It was clearly unfit for purpose in the location of the car park.

If the Claimant was a member of the British Parking Association, they would also be aware that adjudicators cancel council tickets for such a failure.

The only reason the ticket did not remain in place was the Claimant’s poor choice of stationery and the prevailing weather conditions at the windy car park, both issues outside of the control of the Claimant and the Defendant. If anything the contract was frustrated by the weather and every effort was made to comply with the requirements.


6. I have shown a copy of the ticket to the Claimant. The valid ticket was not disputed by the Claimant.



7. I assert that all reasonable endeavours were made to comply with the terms and conditions. A valid ticket was purchased for the period of stay. To this end, the terms and conditions of parking were fully met. The failure to clearly display a parking ticket is the only breach of a term or condition that the Claimant has ever mentioned.

8. A valid ticket was paid for and displayed in good faith according to the terms of the car park. I had no desire whatsoever to spend the necessary time and energy combatting this case in court – but I have been forced to.

9. If the Claimant produced tickets that were designed in such a way as to be fit for purpose, false claims such as this could not be made.


10. The claimant states that they believe the keeper was the driver at the material time based on “reasonable presumption”. I submit that there is no reasonable presumption in law that the keeper was the driver. PATAS and POPLA Lead Adjudicator and Barrister, Henry Michael Greenslade, clarified that with regards to keeper liability,

“There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver” (2015).”

I enclose this statement from the POPLA annual report 2015 as (Exhibit X)

11. I refer to the case of Excel v Ian Lamoureux, C3DP56Q5 at Skipton. The Judge was critical of the claimant’s attempts to hold the keeper liable without being able to rely on PoFA. The judge suggested that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was (which they could not). The judge stated “I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012”. I enclose the transcript of the judgement in this case as (Exhibit X)


c. CS048 VCS v Quayle C1DP0H0J. The Judge stated:

They may have had a claim had they complied with the requirements of the Protection of Freedoms Act, but they have not and they cannot pursue Miss Quayle on the basis of a breach of contract in the absence of any evidence at all that she was actually the driver at the time of the incurrence of the parking charge notice.

PROVIDE EXHIBIT EVIDENCE

In both the above cases, POFA was not complied with and the keeper could not be proven to be driver. Therefore the cases were dismissed.

12. ES Parking Enforcement Limited have made a legal presumption in law that the registered keeper (in particular see the above Point 11), in this case the Defendant, is the driver. ES Parking Enforcement Limited should never make that reference in this sort of situation.


13. I deny that the original terms and conditions were breached.

14. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

15. I assert that the signage on site was confusing and did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The statement of the penalty charges are in small print, at the bottom of the signage. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore, the Defendant asserts that a contract is void and not enforceable.

16. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound. The Defendant asserts that clauses in the Terms and Conditions are unreasonable and the signage does not draw attention to such clauses in accordance with Lord Denning's "Red Hand Rule" from Spurling V Bradshaw. Moreover, the Defendant asserts that, as a result of the signage, the Claimant is unable to demonstrate that anyone parking a vehicle in that car park fully understood the risks and happily took them in accordance with Vine v London Borough of Waltham Forest.

17. The Claimants charges are unlawful as in breach of the Consumer Rights Act 2015 specifically section 62(1) Schedule 2.

18. The Claimant has produced a figure of £XXX.XX. This is a completely unsubstantiated and inflated three-figure sum, incoherently adduced by the claimant's solicitors. I reasonably belief that the sum is simply a number made up out of thin air, and an attempt at inflated cost recovery by the Claimant. Any time and resources allegedly spent by the Claimant are staff employed performing their normal duties for the express purpose of operating its business model and whose cost would have been incurred if the ticket had been displayed or not.

19. The charge is a penalty and unfair consumer charge. The leading case law on this is ParkingEye v Beavis [2015] UKSC 67. Although Mr Beavis lost his case, the Defendant submits that in this particular situation the case law introduced by Beavis is more favorable to the motorist than the operator.

The supreme court ruled that the charge of £85 was not a genuine pre-estimate of loss and that ParkingEye had conceded that that was the case. The penalties law was therefore engaged.

The court ruled that in this case the desire of the landowner was that the motorist had two hours free parking but then left to encourage turnover for other shoppers. The charge therefore needed to be large to ensure that it acted as a deterrent, and this was therefore commercially justified.
In this case the case concerns a ticket which the operator claims was not fully visible at the time. There is therefore no commercial justification for refusing to cancel a charge as it is perfectly possible via the appeals procedure to determine that a valid ticket was paid for.

Additionally, even if a ticket was not paid for, the Court of Appeal ruled in the Beavis case that a large charge was not justified in paid car parks. The CoA ruling (paras 46 and 47) can be taken as a judgment that in a rate per hour car park any charge must be related to the initial fee and the actual costs incurred, and the judgement of Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148 is referred to. As this was not overruled by the Supreme Court, the judgment stands and is binding on lower courts.

20. The claimants charges outline a number of due balances:

a. xxxxxx (ES Parking) £60 rising to £100 if not paid within 14 days
b. xxxxxx (ES Parking) £125 with no reason for the increase
c. xxxxxx (ZZPS) £185 with debt collection charges
d. xxxxxx (Gladstone) £160 with £60 being recovery charges

Balance discrepancies (c. and d.) make the Claimants standing confusing and ambiguous.


21. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representative’s costs". These cannot be recovered in the Small Claims Court.

22. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. I deny that the Claimant is entitled to the relief claimed or any relief at all.


23. I deny that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to ES Parking Enforcement Limited.

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 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. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

The above points brings about the validity of the contract itself.


24. The claimant failed to send a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Associations Code of Practice B1.1 which says:

1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the Creditor within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowners behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.
(PROVIDE EXHIBIT EVIDENCE)
25. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence and no scrutiny of details. I believe the term 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. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

26. I assert that parking companies such as ES Parking Enforcement Limited are using the small claims track as a form of aggressive, automated debt collection and is a waste of court time and resources.

I believe that the facts stated in this witness statement are true.

System

It's got all the elements - and more. Are you able to edit it down to the key facts or strip out the legal stuff and put it in a separate Skeleton?

Just to give the judge a chance / stop him wanting to toss a coin rather than wade through it.

nochargenotice

Thanks IamEmanresu,


I was planning to produce a skeleton argument and would draft that after completing the Witness Statement. I will post the SA here later for comments.


Thanks again for all the help from this forum.