Do I have a case or shall I just pay it? Galdstone letter

hopsfield

OK here it is.
Don't think I will have time to fill that in so might just take it with me.
Please comment - I know its long sorry

DEFENDANT'S CASE SUMMARY AND SKELETON
I am the defendant in this case.
My original defence forms the basis of my legal arguments but having not received the claimants bundle until the xx of January I now wish make the following additional points:
1. The Defendant denies that he is liable for the entirety of the Claim for the following reasons, any one of which is fatal to the Claim:
1.1 The sign doesn’t make any offer to those not able to ‘pay in advance’ caused by a glitch in paying system.
1.1.1 The Claimant would like to point out that a ticket was purchased via the “Pay by Phone” App for the day in question but for some reason the payment on that day did not go through which appears to have been a fault in the system. In any event, this has not at any point been evidenced to be any fault of the driver. When the driver, who was by then off-site, realised the App had not worked (as no confirmation email was received) the driver used the App again and paid for the whole day (12hrs) parking again straight away, the same day, whilst the car was parked.
1.1.2 The driver acted in good faith to engage the App again as soon as they noticed the lack of confirmation email, making perfectly reasonable efforts to comply with the terms, and did.
1.2 The signage on the site is inadequate to form a contract
1.2.1 There is no clear signage whatsoever from the Claimant on the driveway to the carpark (Ex. 2a,2b,2c,2d). Please refer to (Ex.3) a copy of the clear and distinct signage used in ParkingEye Ltd v Beavis [2015] UKSC 67 (Ex.17), where the Supreme Court held that full compliance with the Trade Body Code of Practice was a pre-requisite for properly obtaining DVLA data and was 'effectively regulation'
1.2.2 The signage at this location also breaches the Code of Practice signage requirements for 'Text Size' and 'Contrast and illumination' 'repeater Signs' and 'Other Signs' and no term on any signs set a time limit within which drivers using the App must have ensured a confirmation email was received (Ex.6). The other signs have densely packed text, limited white space and the onerous terms are buried in small print (the tariffs being in far larger font than the parking charge 'penalty').
1.2.3 Further, the signs are not compliant with the Consumer Contract (Information, Cancellation, and Additional Charges) Regulations 2013 (CCR 2013) as appended at Ex.14, which indisputably apply to all consumer contracts requiring payments of a three figure sum or more. This statute includes paid-for parking spaces, as evidenced by page 9 of the applicable EU Guidance (Ex.13) where it states ''For example, renting a parking space...is subject to the Directive''.
1.3 No evidence has been supplied by the Claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. I choose to defend this claim as the registered keeper, as is my right.
1.3.1 In his 2015 Annual POPLA report, (Ex. 8) Barrister Henry Greenslade, refers to ‘Keeper Liability’ where he states: ‘However keeper information is obtained, 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’.
1.3.2 Under POFA 2012, a registered keeper can only be held liable for the sum in any compliant ‘Notice to Keeper’. This depends upon the Claimant fully complying with the statute, including ‘adequate notice’ of the parking charge and prescribed documents served in time / with mandatory wording. It is submitted that the claimant has failed on all counts.

Claimants Case

2. Re point #3 in the Claimant's bundle
2.1 This is a distance contract. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and paying by the App, after the car is so parked. Therefore it was not possible for the driver to “display ticket”
2.2 The address provided by the Defendant is missing post code as well as full car park name. This just proves Claimant’s solicitors are yet again a serial issuer of generic claims, with no due diligence, no scrutiny of details nor even checking for a true cause of action.
3. Re point #4 in the Claimant's bundle
3.1 The claimant wrongly assumes “Defendant’s obligation pursuant to the contract (the Sign) to ensure that the ticket is displayed”. The Claimant has produced no evidence of who was driving. Under POFA 2012, there is no presumption in law as to who parked a vehicle on private land, nor does there exist any obligation for a keeper to name the driver. In his 2015 Annual POPLA report, (Ex. 8) Barrister Henry Greenslade, refers to ‘Keeper Liability’ where he states: ‘However keeper information is obtained, 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’.
3.2 This is a distance contract. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and paying by the App, after the car is so parked. Therefore it was not possible for the driver to “display ticket” – again this proves Claimant’s solicitors are a serial issuer of generic claims, with no due diligence, no scrutiny of details nor even checking for a true cause of action.

4. Re point #5 in the Claimant's bundle
4.1 Again this is a distance contract. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and paying by the App, after the car is so parked. Therefore it was not possible for the driver to “display ticket” – again this proves Claimant’s solicitors are a serial issuer of generic claims, with no due diligence, no scrutiny of details nor even checking for a true cause of action
4.2 The Claimant admits that if the company would “were to waive one charge on the basis put forward in the Defence it would open the floodgates to the waiver of many more charges”. This means the Claimant won’t admit being in wrong purely because it would mean more cases like this would have to be dismissed

5. Re point #6 in the Claimant's bundle
5.1 The Claimants relies on ParkingEye v Beavis 2015 case stating that “valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver’s actions as prescribed therein”. However the Defendant would like to point out a clear difference between the sign in ParkingEye v Beavis and the sign used by the Claimant. For example the ‘parking charge in the sum of a 100’ is in much smaller font and hardly visible. The “Important Notice” is blurry and not visible at all.

6. Re point #7 in the Claimant's bundle
6.1 There is no clear signage whatsoever from the Claimant on the driveway to the carpark. Please refer to the clear and distinct signage used in ParkingEye Ltd v Beavis [2015] UKSC 67 where the Supreme Court held that full compliance with the Trade Body Code of Practice was a pre-requisite for properly obtaining DVLA data and was 'effectively regulation'
6.2 The signage at this location also breaches the Code of Practice signage requirements for 'Text Size' and 'Contrast and illumination' 'repeater Signs' and 'Other Signs' and no term on any signs set a time limit within which drivers using the App must have ensured a confirmation email was received. The other signs have densely packed text, limited white space and the onerous terms are buried in small print (the tariffs being in far larger font than the parking charge 'penalty').
6.3 The sign also doesn’t make any offer to those not able to ‘pay in advance’ caused by a glitch in paying system. The Defendant would like to point out that a ticket was purchased via the “Pay by Phone” App for the day in question but for some reason the payment on that day did not go through which appears to have been a fault in the system. In any event, this has not at any point been evidenced to be any fault of the driver. When the driver, who was by then off-site, realised the App had not worked (as no confirmation email was received) the driver used the App again and paid for the whole day (12hrs) parking again straight away, the same day, whilst the car was parked.
6.4 The sign also breaches the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. Information that must be provided by 'durable medium' for ANY distance (non face-to-face) contract and certainly those contracts involving an exchange of texts using a phone.

7. Re point #8 in the Claimant's bundle
7.1 Again, the claimant wrongly assumes “the contract is between my Company and the Defendant” yet they have produced no evidence as to who parked the vehicle. Under POFA 2012, there is no presumption in law as to who parked a vehicle on private land, nor does there exist any obligation for a keeper to name the driver.
7.2 I rely upon the words of barrister and parking expert Lead Adjudicator for PATAS and POPLA, Henry Michael Greenslade, where he clarified in the POPLA Annual Report 2015 in a heading: 'Understanding Keeper Liability' (of which I have included a copy in my document bundle) that a private parking operator must never presume that a keeper is the driver. That is the reason that Schedule 4 of the POFA was enacted at the behest of the British Parking Association, when clamping firms were no longer allowed to use wheel-clamps. The quid pro quo was to give parking firms a statute under which they can operate if they wish to recover charges from registered keepers.
7.3 No evidence has been supplied by this Claimant as to who parked the vehicle. The Defendant approached the Claimant to supply additional information regarding this claim yet the Defendant's letter was declined.

8. Re #10 and #11 in the Claimant's bundle
8.1 The Claimant relies on ParkingEye v Beavis 2015 case and calls “The charge is not, therefore, excessive “ however unlike Beavis, this situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a tariff for parking being purchased in good faith and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.
8.2 In a similar County Court case about a pay and display car park ParkingEye v Cargius in December 2014, DDJ Mahy dismissed the claim, holding that the charge of £100 far exceeded the applicable tariff cost alleged to be due. Beavis-style ''Commercial justification'' did not apply because the car park generated substantial revenue from tariffs. Therefore it was not necessary to charge large amounts for transgressions to make management commercially viable and there was no other legitimate interest saving the charge from falling foul of the penalty rule, which the Beavis case judgment confirmed is 'engaged' in parking ticket cases and that each case must be considered on its facts. Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view. At 47 in the Court of Appeal Judgment it was held:
''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”
8.3 At the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''
At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated 'complex' cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine: ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''
8.4 This is NOT a 'more complex' case by any stretch of the imagination. At 32, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''
8.5 The Claimant mentions the maximum £100 charge however has never explained how the initial £100 has risen to £150 on the LBC letter
8.6 The Defendant would also like to point out that after receiving NTK the Claimant has refused to supply any evidence and stated that no further correspondence is required. This suggest that the Claimant is not genuinely interested in resolving this dispute but only interested in collecting a penalty charge.

9. Re #12 in the Claimant's bundle
9.1 The Claimant has failed to file enough information in the Particulars of Claim to establish a cause of action that enables the Defendant to prepare a specific defence, i.e for Trespass, a Contractual ‘unpaid fees’ or a Breach of Contract. The Defendant is therefore forced to cover all three possible grounds for the claim. This has caused significant distress and denies the Defendant fair chance to defend the claim in an informed way. The claim merely states: ‘parking charges and indemnity costs if applicable’ which does not give any indication of on what basis the claim is brought. Nor are any clear times / dates or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description ‘parking charges’ and ‘indemnity costs’.
9.2 The Claimant’s statement “The Claim is issued via the County Court Business Centre which is a procedure specifically provided for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of the Claim.” – is an obvious excuse not to provide a clear and sufficient level of information.
9.3 The Claimant’s breaches are serious and are as follows::
29.1 Practice Direction – Pre-Action Conduct and Protocols, paragraphs 3 and 6 (failure to explain the basis of the claim, and to produce core documents, so as to enable the Defendant to understand and deal with the claim in the pre-action phase);
29.2 CPR Rule 18: since issuing proceedings the Claimant has refused to answer requests for information and documents required by the Defendant to understand and deal with the Claim;
29.3 CPR Rules 7/16 (in particular 16.1(2)(a) and 16.4): the obligation to set out the detail of, and properly particularise, a Claim;
29.4 Practice Direction 16, paragraphs 7.3(1) and (2): the obligation to provide, with the Claim, a copy of any contract relied upon, or its general terms and conditions;

10. Re #13 in the Claimant's bundle
10.1 The Claimants Letter Before Claim was not in compliance with the Practice Direction. The letter was very threatening, demanding money and threatening court action rather than explaining what it was. The fact that the Claimant has missed a lot of information required by the Practice Direction could be easily taken as a scam. No evidence was supplied as well no explanation how the additional £50 accrued.

11. Re #14 in the Claimant's bundle
11.1 Again, the claimant wrongly assumes Defendant was the driver.

12. Re #15 in the Claimant's bundle
12.1 Under POFA 2012, a registered keeper can only be held liable for the sum in any compliant ‘Notice to Keeper’. This depends upon the Claimant fully complying with the statute, including ‘adequate notice’ of the parking charge and prescribed documents served in time / with mandatory wording. It is submitted that the claimant has failed on all counts.

13. Claimants Exhibit GSL1
13.1 The full name and address including post code for this car park was never given to the Defendant. It is only now I can see the full detail of the car park location.
13.2 The Sign
13.2.1 The Sign is a printout not an actual photo, therefore no proof it’s actually install on site. The sign also breaches the Code of Practice signage requirements for 'Text Size' and 'Contrast and illumination' 'repeater Signs' and 'Other Signs' and no term on any signs set a time limit within which drivers using the App must have ensured a confirmation email was received. The other signs have densely packed text, limited white space and the onerous terms are buried in small print (the tariffs being in far larger font than the parking charge 'penalty').
13.2.2 Please refer to the clear and distinct signage used in ParkingEye Ltd v Beavis [2015] UKSC 67 where the Supreme Court held that full compliance with the Trade Body Code of Practice was a pre-requisite for properly obtaining DVLA data and was 'effectively regulation'
13.2.3 The sign also doesn’t make any offer to those not able to ‘pay in advance’ caused by a glitch in paying system.
13.3 Site Plan
13.3.1 Site Plan does not show where the Terms and Condition sign is located. It’s also showing incorrect information regarding the locations of signs. Doesn’t represent actual site therefore inadmissible as evidence. Please refer to my Exhibit 2a,2b,2c and 2d photographs for the actual signs located at the entrance on site.
13.4 NTK
13.4.1 This Notice to Keeper lacks some basic information ie:
• Is charge based on damages for breach of contract
• Is your charge based on a contractually agreed sum for the provision of parking?
• If the charge is based on a contractually agreed sum for the provision of parking, there is no valid VAT invoice for this 'service'.
• The Claimant has not provided any copy of the signs that can evidence were on site and which you contend formed a contract with the driver on that occasion
• There is no time length of how long the vehicle was park for
13.4.2 This also breaches the BPA code of practice (Ex.11) Para 22.12 – “If you reject an appeal you must: -tell the motorist how to make an appeal to POPLA. This includes providing a template ‘notice of appeal’ form or a link to the appropriate website […]”
13.5 FINAL REMINDER
13.5.1 The amount of charge has risen to £125 without any explanation why and how it was calculated. Again there is no full address of the Car Park. With the lack of any proof and refusal of any communication this letter could be easily taken as a scam and act of extorting money from people in extremely threatening and malicious manner.
13.6 Photographs
13.6.1 Photos are irrelevant as this is a distance contract. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and paying by the App, after the car is so parked. Therefore it was not possible for the driver to “display ticket”
13.7 LBC
13.7.1 This letter is not in compliance with Practice Directions. The LBC is lacking basic required information as well as no explanation regarding the additional £50 or any evidence to support their claim.


COSTS

14. The Claimant is well known for issuing claims in the form of the present claim, with defective Particulars (known as "roboclaims"), yet continues to do so
15. The Claimant is in flagrant breach of its pre-action obligations, set out in the Practice Direction - Pre-Action Conduct and Protocols (paragraphs 3 and 6, and 12-14), and a specific power to punish such breach is set out in paragraph 15 of the Practice Direction. The defendant has brought this to the attention of the Claimant in his “Acknowledge of the Letter Before Claim”
16. The Claimant has signed a Witness Statement bearing a Statement of Truth which it knows is factually wrong, and which its solicitors know is factually wrong. For instance, NTK is not compliant with the requirements of POFA as well as any request from the Defendant for further documents and information from the Claimant has been either ignored or they simply refused to provide them - this refusal denies the Defendant access to justice because you have effectively been denied the means to meaningfully defend the claim).
17. This Claimant is a professional parking company. Issuing a number of PCNs and chasing/suing for payment. Not only that, but they pursue many of these cases to court. Therefore, they are demonstrably experienced in litigation of this nature, and consequently must know exactly what they are expected to do and must be conversant with the court rules. The Defendant as ordinary citizen has no experience of the law and has never seen the inside of a court room. The lack of details as well as refusal of supplying any additional requested information has made me feel that this Claim is nothing more than a scam. Especially when considering that for this particular day a ticket was purchased. This case should have been easily resolve if it wasn’t for the ignorance and lack of interest.
18. Because of this, I believe that the bar is set high for this Claimant as to what is expected from it in terms of "reasonableness" in the litigation, as per CPR Rule 27.14(2)(g).

Coupon-mad

I would remove 3.2 as it repeats 2.1 and 2.2.

Remove unnecessary repetition, make it simpler for you to use on the day. Make sure it is set out with 1.5 line spacing, size 12 font, for clarity.

And you don't need to actually quote Henry Greenslade twice, remove one of these:

''where he states: ‘However keeper information is obtained, 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’.''

And where you repeat things like this again and again, I wouldn't:

4.1 Again this is a distance contract. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and paying by the App, after the car is so parked. Therefore it was not possible for the driver to “display ticket” – again this proves Claimant’s solicitors are a serial issuer of generic claims, with no due diligence, no scrutiny of details nor even checking for a true cause of action

Instead just say ''4.1 Again this is a distance contract, as stated above in 2.1. Also 1.2.3. (above) applies to distance contracts (including paid-for parking spaces) and the Claimant has failed to incorporate any/all of the informational requirements of that statute.*



*you will need a handy crib list from that Act, the information required for a distance contract. It is quite a simple list, no legalese.



P.S. Make sure you take a costs schedule as a separate sheet. Take this with you, set out to suit, and if you win, ask for those costs to be ordered by the Judge please:

https://forums.moneysavingexpert.com/discussion/comment/72079752#Comment_72079752

You CAN claim loss of leave but some Judges do not even know this, so have this up your sleeve in your notes in your 'costs schedule':

''27.14.2(e) a sum not exceeding the amount specified in Practice Direction 27 for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purposes of attending a hearing''

hopsfield

Thats great thanks C-M,
I've been thinking its too long.
Do I read it out or I pass this S.A. to the judge?

Loadsofchildren123

Serve the costs schedule in advance. I haven't checked the rules this evening, but when they introduced the power to award summary costs (a fixed sum on the day) you had to serve the costs schedule at least 24 hours in advance.

Break down the costs - so don't just say "20 hours on documents and research at £19 per hour" or £20 for photocopying - break the hours down between the different documents/activities:
Drafting and perusing documents: Claim (5 minutes), Defence (x hours/minutes), W Statements (x hours/minutes), Skeleton (x hours/minutes)
Researching and reading case law
Expenses: Parking at court £x, travel to court at £x, photocopying/stationary at £x- x pages at 20p per page, 2 lever arch files and dividers at £x..... and so on.
Loss of earnings

Loadsofchildren123

Serve the Skele 2 or 3 days before the hearing and email or deliver it to the court with a covering note saying what date/time the hearing is. You don't need to serve/file at court the legal authorities, take those with you on the day.
Turn up with 3 copies of the Skele on the day, one for you, one for court and one for Claimant.

Coupon-mad

Is it tomorrow? Have you filed the evidence you refer to already?

Things like Schedule 4 of the POFA; Henry Greenslade's words about Understanding Keeper liability; any transcripts; an excerpt from the Court of Appeal judgment in Beavis to prove the quotes are real; BPA CoP; copy of the Beavis sign itself as a comparison with the pics of the signs in question?

I would email a copy of it all to the other side's solicitor tonight if you can and print out a copy of the sent email (and copy in yourself - your won email address - so you can prove when it was received as an email). Subject line must have the claim number, court and 'skeleton argument'. Include the costs schedule as well so the claimant has seen it all and you can prove it.

Then arrive early enough - 45 mins early perhaps - to ask the Court Usher to hand your skeleton to the Judge - but do boil the repetition right down, even if you spend just half an hour doing so tonight (if the hearing is tomorrow) it will be easier to read for you and the Judge. Should be bullet points, no need to repeat stuff.

hopsfield

Its this Friday.
And yes i have filled all evidence weeks back - together with my WS.
this includes :

Schedule 4 of the POFA; Henry Greenslade's words about Understanding Keeper liability; any transcripts; an excerpt from the Court of Appeal judgment in Beavis to prove the quotes are real; BPA CoP; copy of the Beavis sign itself as a comparison with the pics of the signs in question?

Thank you very much for that by the way.

The other solicitor has got a copy of everything as well I did email it all together with my WS. Apart from Skeleton Argmt and cost schedule.
When you say serve the cost schedule 24hrs. do you mean to the court or the other solicitor?
The case is friday so I still have time to email it (no time to post it)

Very stressed but no matter what the result I'm excited. Thank you all very much for your help!

Loadsofchildren123

para 15: add "and in his Defence and in correspondence".
para 17: take out the last few lines, and say instead "The lack of details as well as refusal to supply any additional requested information to allow the Defendant to deal properly with the claim are further examples of the claimant's "unreasonable" conduct, within the bounds of CPR Part 27.14(2)(g)
18: I think this should be part of 17. I'd put it in after the sentence saying Defendant has never seen the inside of a court room.

Coupon-mad

Costs schedule & skeleton can just be taken with you on the day, but make sure the solicitor for the other side has had everything emailed and print off your sent items and copy in your own email, to prove from your inbox mail that it was received as well.

Loadsofchildren123

Both - to other side and to the court. No problem doing it by email.

*cross posted with CM - I think the costs schedule is supposed to be filed according to the rules, not just served.
If Skeleton is ready, I would send it in by email rather than taking it on the day, but I don't think it would matter at all if you just took it on the day - it's more important the other side has it.