ES Parking Enforcement Ltd

nochargenotice

“
I have covered this in the DS.
”
Is 'DS' the same as 'BS', but performed by ducks?

Hi Umkomaas, I'll avoid abbreviations in the future. The only thing close to a duck in this is that its totally "quackers" for all this to happen from a simple pay and display parking ticket.

The case is a carbon copy of the one claxtome experienced.

nochargenotice

Hi All,

Again thanks for all the help so far. I would welcome any comments on the below. I have a few weeks to get this fine tuned.

I have a link to the Claimant's Witness Statement here:
https://www.dropbox.com/sh/59w71yjeju35uo8/AAAfCmIRW-K51qiHEBGX0s01a?dl=0


My Skeleton Argument (apologies for the length of it, but late arrival of content in the link above meant my defence couldn't fully cover all their arguments):


DEFENDANTS SKELETON ARGUMENT
FOR THE HEARING XX NOVEMBER 2018

Terms used in this document:
Beavis Case: Cavendish Square Holdings BV v Talal El Makdessi; ParkingEye Limited v Beavis [2015] UKSC 67

BPA: British Parking Association

CoP: Code of Practice (issued by both BPA and IPC)

ESPEL: ES Parking Enforcement Ltd issued the NtD and NtK in this case

IPC: International Parking Community (membership of either BPA or IPC. Code of Practice is compulsory for any parking company wanting to access keeper data from the DVLA). The Claimant is a member of IPC

The Land: Land near XXXXX Street, YYYYYY [Exhibit XX]

NtD: Notice to Driver

NtK: Notice to Keeper

The Parking Contract: The agreement dated 12.02.15 between Total CarPark Solutions and ESPEL exhibited to the Claimant’s Statement [Exhibit XX].

PCN: Parking Charge Notice (the same as the NtD, a ticket stuck to the windscreen of a vehicle informing the driver of a charge)
(Any others to be added later)
References in [] are to exhibit number, page and paragraph numbers of the Defendant’s bundle.
Summary of Defendant’s position:
The suggested approach to this matter is for the court to decide in turn upon the following issues:
ISSUE A: Has the Claimant complied with its obligations under the Practice Direction Pre-Action Protocol?
ISSUE B: Was the Claimants contract breached at all?
ISSUE C: Has the Claimant Locus Standi to offer a contract?
If the court decides in favour of the Defendant in relation to issue A, there is no need for it to consider issues B/C, or if it decides in his favour in relation to issue B then again there is no need for the court to go on to consider issue C.

ISSUE A: Has the Claimant complied with its obligations under the Practice Direction Pre-Action Protocol?
1. The Claimant has not complied with its obligations under the Practice Direction Pre-Action protocol because:
1.1 The Claimants Letter Before Claim dated XXXXX (Exhibit X). Contains none of the information required under the Practice Direction Pre-Action protocol.
1.2 The Claimants Letter Before Claim dated XXXXX (Exhibit X). Contains none of the information required under the Practice Direction Pre-Action protocol.
1.3 The Defendants response dated XXXXX (Exhibit X) sets out the information required to provide an informed response.
1.4 The Defendants response dated XXXXX (Exhibit X) sets out the information required to provide an informed response.
1.5 The Defendants response dated XXXXX (Exhibit X) sets out the information required to provide an informed response.
1.6 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).
1.7 The Defendant relies on the sanctions set out in Practice Direction - Pre-Action Conduct and Protocols paragraphs 13 – 16.
1.8 The Defendant relies on 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''.
1.9. 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.
1.10 The Defendant also relies on:
XXXX v YYYY (abstract of case 1)
XXXX v YYYY (abstract of case 2).
ISSUE B: Was the Claimants contract breached at all?
2. The Defendant's primary position is that a valid ticket was purchased and displayed for the time parked in the car park.

2.1. Any breach (which, for avoidance of doubt, is denied) was de minimis "too trivial or minor to merit consideration" and the ticket flipping over was casus fortutitus "chance occurrence, unavoidable accident” [Exhibit XXXXX].

2.2. The term "displayed clearly" is not transparent per Section 68 of the Consumer Rights Act 2015. Where contract terms have different meanings Section 69 of Consumer Rights Act 2015 provides a statutory form of the contra proferentum rule, such that uncertainty must be resolved in favour of the consumer [Exhibit X].

2.3. The Claimant's main argument is the ticket was not displayed the right way up so it couldn't check the validity of the ticket. However, the ticket had a serial number on its rear side, and the Claimant has had plenty of opportunity to see a copy of the valid ticket and quash the parking charge, both at the appeal and 'Letter Before Claim' stages [Exhibit XXXXX] [Exhibit YYYYY].

2.4. The issue known as "fluttering tickets"; is common and well known. A flimsy ticket, which has no ability to be stuck to the dashboard or windscreen of a car, can easily flip over when the door of the car is closed. Comments about the upside down ticket [EXHIBIT XXXXX]:
2.4.1. The ticket was very flimsy and could easily be flipped particularly as it a big open car park with no shelter from the elements. [Exhibit XXXXX]
2.4.2. Has no sticky back to allow it to be fixed to the windscreen.
2.4.3. It has a serial number on the reverse side of the ticket [Exhibit YYYYY].
2.4.4. Council adjudicators (included here as in the Beavis case they were happy to draw similarities with Council parking cases) have often referred to the issue of "fluttering flimsy tickets" and accept that such tickets are essentially unfit for purpose and allow appeals based on validly purchased tickets which flip over because they cannot be fixed in place inside the vehicle [Exhibit XX]:

2.5. The Defendant relies on Jolly v Carmel (2000) in which the court held that a party who makes reasonable endeavours and reasonable steps to comply with contractual terms should not be penalised for breach outside of their control and outside of any contractual term within their knowledge [EXHIBIT XX- transcript].

2.6. The Defendant relies on D3GF4P9D Private Parking Solutions London -v- Mrs A, before DJ Hammond. The DJ started by saying the whole case turned on the fact that a ticket had been purchased, and he wasn't going to delve into any other arguments. The ticket had been placed face down on the dashboard, so the PPC were entitled to issue the PCN. However, when they were shown the evidence, and proof of purchase of the ticket, they could not penalise the driver. The Beavis case made it clear that a charge which would otherwise be a penalty, could be upheld if it acted as a deterrent against breach. That did not apply here, as there was nothing to deter.
The case was dismissed, although the Defendant had to pay some costs because they had ignored all previous correspondence and hadn't appealed.

2.7. The Defendant relies on C8GF30W7 Link Parking v Mr H. 14/11/2016 Port Talbot
Mr H. The driver parked and purchased a valid ticket which he displayed on the dashboard. When he returned to his car he found a parking charge because at some time the ticket had turned upside down. The judge dismissed the claim. He ruled that it was the responsibility of the parking company to provide sticky backed tickets and that he had already thrown out 6-10 of these type of cases which Link Parking had brought.
ISSUE C: Has the Claimant Locus Standi to offer a contract?
3. The Claimant has no Locus Standi to bring this claim because:

3.1. The party 'Total CarPark Solutions', in the Parking Contract, is not the landowner or another entity authorised by the landowner so has no legal personality and is incapable of entering into a contract. 'Total CarPark Solutions', or similar name, is not even a recognised company according to Companies House.

3.2. 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 Association Code
3.3. Part B Paragraph 1.1 of the IPC CoP specifically provides that the Claimant must have written authorisation of the landowner [EXHIBIT X]. Compliance with the CoP is mandatory. Implicit in this is that Claimant would have no rights under the Parking Contract if they were not granted by the landowner.

3.4. According to title CH178919 (exhibit XXX) the landowner is Winwick Partnership which is registered in England and Wales under ref LP009364. There are two general partners; Faraday Management Ltd (registered in the Isle of Man) and Winwick Ltd, (Register 04969819) [EXHIBIT X]. There is no mention a landowner or leaseholder similar to 'ES Parking Enforcement'.

3.5. The Defendant relies on Ebbw Vale Urban DC v South Wales Traffic Area Licensing Authority [1951] 1 All ER 806 (as set out in Air-Care Ltd v Blais and Les Immeubles Pro-Car Limitede et al) in which it was held that each entity in a group of companies (and their rights and obligations) is separate and distinct, and for one connected business entity to pass rights onto another, those rights must be granted by way of a formal agreement. If there is no formal agreement, the rights/obligations of one entity cannot become the rights/obligations of another entity, even if it is connected/part of the same group of companies/under common ownership.

3.6. The Defendant also relies on:
ParkingEye Ltd v Gosnold (parking contract with non-landowner not valid)
ParkingEye Ltd v Rickard (Claimant did not produce evidence of a contract with the landowner).

3.7. The Parking Contract evidenced by the Claimant is incomplete as Clause 8 mentions "..terms and conditions overleaf" and is out of date as it was valid for 1 year and signed on 12.02.15. [RefXXXX].

REBUTTAL OF CLAIMANT EVIDENCE

4. The Claimant will no doubt assert that the principles in Beavis apply to this case. The factual matrix of the Beavis case was very different, in several important respects:

4.1. In Beavis the Defendant accepted that there was a contract formed by the signage, which was exceptionally clear and prominently displayed (a photograph of the sign in the Beavis case is at page [Exhibit X]). The case was therefore concerned only with the issue of damages and not liability for breach of contract. Neither admission has been made in this case.

4.2. The car park in Beavis was at a retail park, where a free period of parking was offered, and where there was a commercial justification in deterring visitors from overstaying so as to ensure a turnover of visitors to the commercial units. This justified a departure from the penalty rule. This is a standalone pay and display car park with no such commercial justification/interest where such a departure is NOT justified.

4.3. In Beavis the Claimant paid the landowner to operate the parking, and so the Claimant had to generate an income from doing so in order to cover its costs and make a profit. In this case, the Claimant is paid by the other party to the Parking Contract, so has no need to manage the parking in such a manner as to profit from PCNs.
5. PARTICULARS OF CLAIM.
5.1. The Claimants Witness Statement (Paragraph 8) states that the requirement to attach particulars of claim does not apply to claims started using an online claim form. There is no evidence that the Claimant wanted to include more detailed particulars of claim and was unable to do so by the constraints of the system. The character limitation should not be deployed as a basis for failure to plead his case properly. In any event the MCOL system guidance specifically states:

If you do not have enough space to explain your claim online and you need to serve extra, more
detailed particulars on the defendant, please tick the box that appears after the statement ‘you may
also send detailed particulars direct to the defendant’.
6. LACK OF INFORMATION.
6.1. The Claimants Witness Statement (Paragraph 13) states that the Defendant did not raise any issues with the lack of information. The Defendant refers to Exhibits XX to YY which set out the information required in order for the Defendant to respond. To date those requests for further information have received no response from the Claimant.
6.2. The Claimants Witness Statement (Paragraph 14) reiterates the Claimants statement that the Defendant did not raise any concerns with the lack of information. The Defendant refers to Exhibits XX to YY which set out the information required in order for the Defendant to respond. To date those requests for further information have received no response from the Claimant.
7. DISPLAY OF PRE-PAID PARKING TICKET.
7.1. The Claimants Witness Statement (Paragraph 15) states that the photographs show that there was no pre-paid ticket displayed by the Defendant in his vehicle on the day the charge was issued. The Defendant states that the Claimants own evidence shows that a ticket was displayed.
7.2. The Claimants Witness Statement (Paragraph 21) states that the ticket was clearly displayed, which contradicts their statement in paragraph 15 that there was no pre-paid ticket displayed.
8. The Claimants Witness Statement (Paragraph 16) makes reference to the case of Alder V Moore (1961). The signage is determinative of the contract between driver and parking company, if one is held to exist. Alder v Moore is an authority which, by and large, has been superseded by the Supreme Court judgment in Parking Eye v Beavis on penalty charges. Even were that not to be the case, it is averred that the Alder matter can be distinguished, relating as it did to a commercial policy of insurance where to allow the Defendant to receive his insurance payment and pay no liquidated damages would have resulted in unjust enrichment.
9. MANAGEMENT OF THE LAND. The Claimants Witness Statement (Paragraph 18) particular to the management of the land is addressed in the section above “Issue C: Has the Claimant Locus Standi to offer a contract?”
10. The Claimants Witness Statement (Paragraph 19) makes reference to the case of Parking Eye v Somerfield (2011). This case is different as (rebuttal to be added).
11. The Claimants Witness Statement (Paragraph 21) states that the signage was clearly visible. The Claimant is put to strict proof that the signage exhibited within their witness statement was the signage in use and displayed on the day of the alleged incident.
12. The Claimants Witness Statement (Paragraph 24) states that the ticket should be displayed clearly and not face down. The signage exhibited to the Claimants witness statement refers to the ticket must be “displayed clearly”, the clarification of “not face down” is a clarification after the fact and an additional contract term applied after the event which is unfair according to the CRA 2015 [Exhibit XX].
13. The Claimants Witness Statement (Paragraph 25) regarding the term “displayed clearly” is addressed in the section above “ISSUE B: Was the Claimants contract breached at all?”
13.1. The Claimants Witness Statement (Paragraph 25) requests the Defendant consider the purpose of the scheme. The purpose of the scheme is not the Defendants matter. The issue is whether the Claimants case in this matter is valid.
14. The Claimants Witness Statement (Paragraph 26) states the Defendant did not adhere to the terms of the signage and therefore breached the contract. The terms of the contract displayed on the signage were not breached as evidenced by the Defence exhibits (Exhibits XX-YY) and the Claimant’s own evidence (pages XX, YY of the Claimants Witness Statement.
15. The Claimants Witness Statement (Paragraph 28) continues the presumption that the Defendant was the driver; refer to the Defence Statement (Exhibit XX) paragraph XY for the Defendants standing on this matter.
16. The Claimants Witness Statement (Paragraph 29) states the signage on the land was clear and unambiguous. The Claimants own statements adding further clarification demonstrate that there is ambiguity in the signage.
16.1. The Claimants Witness Statement (Paragraph 29) regarding signage on the land, the Claimant is put to strict proof that the signage exhibited to their Witness Statement was the signage in place at the time of the alleged incident.
17. The Claimants Witness Statement (Paragraph 31) claims the ticket was not displayed in accordance with the terms. The only term the Claimant is concerned with is that of “displayed clearly”, the Claimants own witness statement (Paragraph 21) states that the ticket was clearly displayed.
18. The Claimants Witness Statement (Paragraph 32) states that if the Claimants Company was to waive one charge, it would open up the floodgates to the waiver of many more charges. The Claimant must therefore be aware of a problem with the tickets if this is the case.
19. NO AUTHORITY TO ENFORCE.
19.1. The Defendant has addressed this in the section above “ISSUE C: Has the Claimant Locus Standi to offer a contract?”
19.2. The Claimants Witness Statement (Paragraph 33) refers to the contract exhibited (Page X of the Claimants Witness Statement). The Contract is out of date, being valid for one year from the date of the agreement, the contract is incomplete as it refers to “terms and conditions overleaf”. The Contract is also not in the name of the Claimants Company.
19.3. The Claimants Witness Statement (Paragraph 34) states that the agreement between the operator and the landowner is of no relevance. The Defendants position is that the IPC Code of Practice requires strict proof of an operator contract as the Defendants Exhibit (XX).
19.4. It is not for the Defendant to prove that the Claimant is not permitted to issue tickets. The Claimant must prove his case. If the Claimant fails to make out his case, the presumption is that the charge shall not apply. The Claimant does need to prove that he is entitled to ticket before he can reasonably expect a Defendant to pay.
19.5. The Claimants Witness Statement (Paragraph 34) – rebuttal of VCS v HM RC to be added.
20. CHARGE EXCESSIVE / TARGETED.
20.1. There is no industry standard charge as referenced in the Claimants Witness Statement (Paragraph 37).
20.2. The Claimants Witness Statement (Paragraph 39) states that the Defendant alleges that the Company targets certain motorists. The Defendant has not stated this. The Claimant is requested to confirm where this is claimed in any part of the Defendant’s exhibits.
21. COSTS
The wrapping up of additional charges with the claim by the Claimant appears to be an attempt to recover legal professional costs which are not permitted or recoverable on the small claims track. To the extent that the costs are based otherwise the Claimant has provided no evidence as to how these costs are derived and no schedule in support of the same. The Defendant avers that they should be disallowed.
22. The Defendant may refer to Elliot v Loake. Rebuttal to be added. There is no requirement to name the driver

Signature of Defendant:

Coupon-mad

2.2. The term "displayed clearly" is not transparent per Section 68 of the Consumer Rights Act 2015. Where contract terms have different meanings Section 69 of Consumer Rights Act 2015 provides a statutory form of the contra proferentum rule, such that uncertainty must be resolved in favour of the consumer [Exhibit X].

So vague is the meaning of ''displayed clearly'' that the Claimant's witness, at para 23, even admits ''the ticket was clearly on the dashboard''. CLEARLY!

Also add in that the contract with this non-landholder gives the other car parking firm 'Total CarPark Solutions' locus as 'creditor' with the right to sue, not ES. Se para 9 of the contract where it clearly states that the Company (capital 'C') has that right. The only entity identified as the 'Company' (capital C) is TPS, not this Claimant.

https://forums.moneysavingexpert.com/discussion/comment/74802127#Comment_74802127

HTH

nochargenotice

Thank you Coupon-mad. That's very helpful.

nochargenotice

Hi All,

I have made some minor changes, plus the following and would welcome comments, and assistance in particular with the rebuttal of the VCS v HMRC (2013) case mentioned in the list below:

Added to locus section:
X.X. The Claimant’s witness at page * shows the contract with this non-landholder gives the other car parking firm 'Total CarPark Solutions' locus as 'creditor' with the right to sue, not the Claimant. The Defendant refers to paragraph 9 of the contract where it clearly states that the Company (capital 'C') has that right. The only entity identified as the 'Company' (capital C) is 'Total CarPark Solutions', not this Claimant.

Added to rebuttal of Claimant evidence section:
X. The Claimant’s witness at paragraph 4 states the Defendant did not pay and display a valid pre-paid voucher or place it in view. The Claimant’s correspondence [Exhibit x, page x, para y] states that the Client doesn’t dispute that parking may have been paid. The Claimant’s witness, at paragraph 23, admits ''the ticket was clearly on the dashboard'' [Exhibit XX].

Rebuttal of Somerfield case:
X. The Claimants Witness Statement (Paragraph 19) makes reference to the case of Parking Eye v Somerfield (2011). The case examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings. It follows therefore that if a debt exists, it is owed to the landowner, not the Claimant.

Rebuttal of Elliot v Loake:
21.1. The Claimant may refer to Elliot v Loake (1983) as case law which supports the view that the owner of the vehicle, if there is no contrary evidence, is the driver. This is an incorrect representation of the case for the following reasons:
The facts of the case are that the appeal judge ruled that the appellant was the driver because of the ample evidence that he was the driver, and not, as you incorrectly state, because of the lack of evidence as to who the driver actually was.
In the case there was ample evidence that justified the magistrates to conclude that this man was driving his blue sports car on the night when it collided with the stationary car. Additionally, a crucial part of the case was that forensic evidence showed that the appellant lied. Other material facts were that the driver had the only keys in his possession that night and that no-one else had permission to drive the car. This case does not therefore introduce any binding legal principal as this case turned on its own facts. If any principle can be adduced, it is the well-known principle that once a witness has been proven to have lied in one respect, it is likely that their evidence elsewhere is also false. There is a general principle that the claimant has to prove their case. The Claimant has shown no evidence that the Defendant was the driver.

REQUEST FOR FORUM ASSISTANCE:
The Claimant's witness (Para 34) states the case of VCS v HMRC (2013) which they claim supports their position of authority to enforce.
I would be grateful for any assistance to construct or point to a rebuttal of this please.

Many thanks in advance.

Coupon-mad

Here you go:

https://forums.moneysavingexpert.com/discussion/comment/72878578#Comment_72878578

nochargenotice

Hi All,


Should I include a copy of the Claimant's witness as an exhibit in my Skeleton Argument?


It seems a waste of paper as the Judge will have it, but would make it easy for him/her to refer to.


Thanks.

Coupon-mad

No, it will already be in the Judge's hands in the Claimant's pile of trash.

nochargenotice

Hi All,


Thanks for your continuing help. Im going to write to the court, cc'd to Gladstones, requesting the attendance of the Claimant's witness. Is something as simple as the following sufficient?


"The Defendant requests the attendance at Court of the Claimant’s witness in connection with the above claim."


Thanks.

System

"The Defendant requests the attendance at Court of the Claimant’s witness in connection with the above claim."

Take care with that one. There is a mechanism for this called a Witness Summons but there is a fee for it's issue and costs implications for you. CPR 34.7

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part34#34.2

Suggest that the court will come back and ask you to pay a fee.