Any help with frustration of contract defence

AKAMUM

Hi, Newbie to all this and in need of some help. Unfortunately did not research prior to now so my case is not as good as it perhaps could have been, but here are some key details:

1. Parked in CEL operated car park (90 minutes free)
2. Car broke down after using facilities on site, was unable to move it.
3. Husband came to jump-start the car after he finished work (7 hours later)
4. Appeal to CEL did nothing. naively told the events as they happened.
5. Appeal to POPLA failed on the basis of 'overstay' 'clear signage' 'no notification to operator re: breakdown'
6. Received LBA after submitting appeal to POPLA (maybe an overlaps in time as it did take forever for POPLA to acknowledge the appeal)
7. Have not yet replied to LBA as POPLA appeal was underway, could possibly be too late?
8. Original fee was £60, then £100, now £140 plus CEL state they will claim court costs etc..
9. Michael Schwartz named on 'draft particulars of claim'
10. I believe CEL know i was driving (rookie mistake)
11. in evidence supplied to POPLA, CEL have provided misleading evidence. (showed a close up of a white sign with their 'terms' on and several photos of the site showing their signs in situ, however the signs on site are a different colour therefore do not match the close up)

I'm trying to pull something together to fend off the case, I'm hoping to use Frustration of contract as my defence but have not found another case using this despite my search in the MSE forums.

I have vigorously searched lots of cases involving CEL, I am aware of the Schwatz stories and have also read the newbie threads and the court claim procedure but its a lot of information to process. I've read a fair few defences too but struggling to mould them to my case.

All help appreciated.

Coupon-mad

Here is a thread which has now gone almost to hearing stage so the defence is shown somewhere there and includes the fact that the car stopped to check an oil leak:

https://forums.moneysavingexpert.com/discussion/5070951

And the thread also links to a Parking Prankster Blog about a hearing where the Judge accepted the car was broken down (part of this will be you coming across as very reasonable and an honest witness, so the Judge accepts YOU are the wronged party, not the parking firm, and indeed it is a case of frustration of contract/not a consumer's fault/not a matter where either party should benefit financially).

in evidence supplied to POPLA, CEL have provided misleading evidence. (showed a close up of a white sign with their 'terms' on and several photos of the site showing their signs in situ, however the signs on site are a different colour therefore do not match the close up)

Sounds familiar, have you already got a pepipoo thread going?

The_Deep

I am not sure that you are the "wronged party" here. Had you called a breakdown service, I would have agreed, but to wait 7 hours for a jump start is taking the Michael a bit in my opinion.


The SRA is taking a particular interest in Michael Schwartz, so copy them in on the correspondence, mentioning the fake photographs in the process. We cannot have solicitors attempting to obtain monies by misrepresentation.


http://www.sra.org.uk/consumers/problems/report-solicitor.page

bargepole

AKAMUM wrote: »

... I have vigorously searched lots of cases involving CEL, I am aware of the Schwatz stories and have also read the newbie threads and the court claim procedure but its a lot of information to process. I've read a fair few defences too but struggling to mould them to my case.

All help appreciated.

Try this:

I rely on the doctrine of Frustration of Contract in my defence. The contract was formed between the Claimant and the driver, in which the Claimant granted the consideration of free parking for 90 minutes, in return for a promise to leave within 90 minutes on the part of the driver. There was, in this case, a change in circumstances which was not the fault of either party, and which rendered it impossible for the driver to perform the contract.

Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach. The allocation of loss is decided by the Law Reform (Frustrated Contracts) Act 1943, but in this case there was no loss to the Claimant at the time the contract was breached, and so they have no valid claim for £100 or any amount at all. The case of Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126 provides authority for this.

System

Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach.

But what do the signs say? There are plenty of examples where "frustration" is anticipated and an instruction is placed on the signs e.g. if the Pay and Display machine fails call .....

So nail that one down. Otherwise it's as BP says.

Guys_Dad

I think much will depend upon whether the car park was a 90 minute maximum or if there was a method of paying for time over and above.

If the latter, then, given that the driver returned prior to the expiry of the free time and could not move the car, then there would have been an opportunity to purchase additional time and, therefore, no frustration of contract.

If it was a maximum stay of 90 minutes with no facility to stay longer, then the frustration of contract has some sway (but as post #3 states it would have been easier with a breakdown service in attendance).

salmosalaris

I'm not sure that's correct
The contract became frustrated at the point the driver ,through no fault and circumstances beyond their control, couldn't move the car and complete the contract at the time intended . At this point in time there was no loss .
Agreed evidence that removal prior to the expiry of the free period was attempted would strengthen the case

AKAMUM

Sounds familiar, have you already got a pepipoo thread going?

Yes, thats me. As my case progressed i thought it would be best to start a new thread.

Had you called a breakdown service, I would have agreed, but to wait 7 hours for a jump start is taking the Michael a bit in my opinion.

Totally agree with this but unfortunately was not in a position, financially to be able to do this. Husband works out of town so that added time on, and I have no family locally who could have helped.

But what do the signs say? There are plenty of examples where "frustration" is anticipated and an instruction is placed on the signs e.g. if the Pay and Display machine fails call .....

Not a pay and display site. Sign states 90 minute maximum or you agree to pay £100, applicable 24 hours.

CEL have stated that i was no permitted to park longer than 90 minutes so surely this could be treated as trespass and not overstay? They have also said that there is no circumstances that would overturn breach of contract.

I know i haven't helped myself much but don't believe I should be punished for it!

salmosalaris

send me a pm

Coupon-mad

You can trust salmosalaris so that is a great offer for him to assist you by private message contact. I don't think he will mind me saying, I believe he helped this guy:

http://parking-prankster.blogspot.co.uk/2016/11/ukpc-hit-for-352-for-discontinuing.html

HTH

Half_way

Who's car park was it?