ES Spinningfields Manchester County Court Papers

Keezy

I've managed to put together some sort of defence, please (if anyone has time) read and critique it. I'd appreciate if anyone can tell me if I've missed anything out wh oh may help. Thanks.



1. The Defendant completely denies any liability to the Claimant.

2. The Claimant has not complied with proper pre-court protocol. The Particulars of Claim contains no detail and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. The Claim states “parking charges” which does not clearly indicate the basis on which the Claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The Defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action.

3. It is admitted that the Defendant is the registered keeper of the vehicle in question. However the Defendant was not the driver of the vehicle on the dates in question.

If the Claimant is intending to pursue this claim against the Defendant on the basis that the Defendant is the registered keeper then the Claimant has failed to show that the conditions for recovering this charge under Schedule 4 of the Protection of Freedoms Act 2012 have been met. The Defendant disputes that any of the conditions necessary for a claim to be pursued against the keeper of the vehicle have been met.

3.a) No evidence has been provided to show a valid Notice to Driver was given to the driver in accordance with Paragraph 7, Schedule 4 of the Protection of Freedoms Act 2012.

3.b) Where a Notice to Driver was given no evidence has been provided to show that a valid Notice to Keeper was served in accordance with Paragraph 8, Schedule 4 of the Protection of Freedoms Act 2012.

3.c) Where no Notice to Driver was given no evidence has been provided to show that a valid Notice to Keeper was served in accordance with Paragraph 9, Schedule 4 of the Protection of Freedoms Act 2012.

3.d) No evidence has been provided to show that the Creditor has made a valid application for keepers details in accordance with Paragraph 11, Schedule 4 of the Protection of Freedoms Act 2012.


4. It is believed that the Claimant has no standing to bring this claim. The proper Claimant is the landowner. They have failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to ES Parking Enforcement Ltd. The Defendant claims that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.


5. The signage at the location is poor. The Claimant did not display clear signs within the site that were capable of being read and/or form a contract. There is no signage at the entrance of the street to indicate the area is private. There are no prominent signs to indicate "no stopping/parking" to drivers. Other signs are raised high up on the "public" footpath facing away from the road with small text difficult/impossible to read at night.

The signage did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC, whose requirements they also did not follow. Therefore no contract has been formed with driver and the notices do not provide the 'adequate notice' of the parking charge which is mandatory under Schedule 4 of the POFA. No sum payable to this Claimant could have been accepted, or even known about by any driver, as they would not have been given a fair opportunity to discover the onerous terms by which they would later be bound.

5.a) Furthermore the lack of signage to indicate private land and the inadequate signage on the road in question indicate illegal predatory tactics. The road in question has yellow lines, imitating the surrounding public roads with a small space with no lines enough for 3/4 cars and no clear signage directly in this part of the road.

6. The Defendant also disputes that the Claimant has incurred £50 solicitor cost. The Particulars of Claim are incompetent in disclosing no cause of action.

7. Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999.

7.a) The Claimant might argue that the Supreme Court’s decision is Parking Eye v. Beavis is applicable. The Defendant will argue that the present case meets none of the conditions that the Supreme Court stated were required for a parking notice to be exempt from the well-established principle that penalty charges cannot be recovered.

The main difference is that the Supreme Court determined that, in a retail park, there was a commercial interest in ensuring a turnover of visitors that justified a disincentive to overstay. On the contrary, the ruling in the Court of Appeal, which was not overturned by the Supreme Court, is that the "Penalty Rule" remains engaged unless a compelling commerical justification can be shown. I submit that this site cannot have the same commercial justification and therefore the penalty rule remains in force. In addition the signage fails to import the core price term into the contract, as unlike in Beavis where the penalty sum required was in "unusually prominent" lettering, the signage in this case is poor and as such cannot be held to have been imported into any alleged contract.There is clearly no such interest in a third party attempting to impose conditions in this area where there is parking available in several immediate areas and no turnover of visitors. It is denied that any contract existed here and in any case, Mr Beavis was the driver and this is not the case here.


8. The Defendant invites the court to strike out the claim as having no prospect of success.

System

You've covered signs, contracts, chain of authority/standing, POFA and CPR, and not the driver. Seems all bases covered

Grimble

Advertising consent for signs with proof of payment and renewal, not just a statement of truth.

Keezy

Grimble wrote: »

Advertising consent for signs with proof of payment and renewal, not just a statement of truth.

Ahhh thanks Grimble, how can I word this in the claim, just how you've written it ? I could put it as 5b

Coupon-mad

I wouldn't mention it; the claim is not void because of a minor typo.

Keezy

Hi, I'm not sure if anybody can help or will see this, but having written the defence a while back, I'm just going through it now as I have my court date this week.

It might sound stupid but I'm just asking if someone can clarify and connect my point 3 (a,b,c,d) to the letters I received, which I posted a link to in the original post. I wrote it a while back and just struggling to fully understand the wording and liking it to the letters.


Thanks

twhitehousescat

read this page , all falling apart for ES http://parking-prankster.blogspot.co.uk/search?q=es+parking

Coupon-mad

Keezy wrote: »

Hi, I'm not sure if anybody can help or will see this, but having written the defence a while back, I'm just going through it now as I have my court date this week.

It might sound stupid but I'm just asking if someone can clarify and connect my point 3 (a,b,c,d) to the letters I received, which I posted a link to in the original post. I wrote it a while back and just struggling to fully understand the wording and liking it to the letters.

I hope you read the court date letter and saw that it required the Defedant (and the Claimant) to file a Witness Statement and your evidence by a certain date (usually not less than 14 days before this hearing)?

Did your Defendant file their WS and evidence last month as Directed in the court's letter, and did they file theirs to the Defendant? What did their WS say, what evidence have they shown?

If they haven't, maybe the Judge will forgive this Defedant, your relative, for a last minute skeleton argument and evidence filed just in time, before that hearing. Spinningfields cases should all be won by OPs but they should have filed evidence, even if just a summary WS from the keeper setting out the facts and that they were NOT driving, plus enclosing:

- some of the Prankster's recent blogs on the scam, plus
- some pics of the signs,
- a pic of the Beavis case sign as a comparison showing clear signage (easy to Google, shown in a Prankster's blog in 2016)
- a printout of Schedule 4 showing what is required for keeper liability, in a NTK.

And errrrrmmmm...this is NOT your court date, you cannot attend in place of the Defendant:

I am not the registered keeper of the vehicle, it belongs to a relative and therefore all the letters are in their name.

THEY are the Defendant. THEY must attend (you can go with them, either as a MacKenzie friend or 'Lay Rep' if they are scared).

Keezy

Thanks Coupon,

Yeah everything seems to be in order, the defendant filed everything early January, I even went to the court and asked if the claimant had paid the court fees, they said they hadn't but have been given a final 7 day notice. I haven't heard anything since so just presuming they paid.

Their WS contained things like a copy of the sign, letters, mentions the Beavis case, photos of the car and proof of a contract between them and the landowner. I will try and upload photos tomorrow.

As the defence was filed quite early I didn't include the prankster blogs or printed schedule 4, is it worth still taking it ? I can even still try to submit them as the court is literally down the road.

I'll define lay be going as one of them.

If possible could you just explain the schedule please about the keeper liability in the NTK.


Thanks again Coupon, appreciate your help a lot.

Coupon-mad

As the defence was filed quite early I didn't include the prankster blogs or printed schedule 4, is it worth still taking it ? I can even still try to submit them as the court is literally down the road.

Yes - file to Gladstones and to the Court - with a skeleton argument explaining in bullet points, how they support your original defence.

If possible could you just explain the schedule please about the keeper liability in the NTK.

Yes, as the PCN was a postal one, if it is to hold the registered keeper liable, it MUST fully comply with paragraph 9 of Schedule 4, print this out as evidence and file it with the Court and G's (G's can be emailed):

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

So, look particularly at vital sections in para 9, such as (mainly) 9(2)f. Highlight it then compare the original, postal PCN to it. I doubt ES has the wording of the 29 days and warning right? Also does the PCN have the other things stated in para 9, like a 'period of parking'?

Also don't forget, as well as a compliant NTK, Schedule 4 also requires the parking firm to show:

1. A 'relevant obligation or relevant contract'. That's not the contract with the landowner (which is worth raising in a defence but isn't what this bit of the POFA means). It means there must have been a contract 'agreed' with the driver from clear terms, and/or a clear 'obligation' to pay the £100 parking charge. That fails then! The signs being pants.

2. 'adequate notice' of the parking charge. Same as above really. The signage fails, no offer, no agreement, no contract.