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Coupon-mad

tea_queen wrote: »

Coupon-mad - In terms of point 2, letters appealing this claim to the parking company 2 years ago were written first person rather than vaguely as keeper, so presumably can't assume position of no knowledge now without it counting against me as the defendant? Should I just change this section to first person?

Yes - sadly that means you must remove all points about the POFA 2012 Schedule 4 because it doesn't relate to drivers.

tea_queen

Sorry also, can I just check I have this section correct? Having reread this more thoroughly, I think the point I need is there but is the part about parking outside of the bay lines (highlighted in red) specific to someone else's case or is it relevant to the point and I'm not understanding correctly?

7. The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet ParkingEye would not have been able to recover any sum at all without 'agreement on the charge'. In the Beavis case, the £85 charge was held to be allowable to act as a disincentive in that case only, based upon very specific and unique facts in a 'complex' case involving the existence of a specific legitimate interest from the landowners regarding turnover of parking spaces and very clear, brief and prominent signs. In fact, the Supreme Court Judges observed that it would be unfair if drivers were to be penalised for parking slightly out of bay lines when causing no obstruction (this was specifically mentioned at the hearing and was clearly not something they would have allowed). Further, it was held at the Court of Appeal that a parking charge sum of £135 would fail the penalty rule. The authority for this is 'Parkingeye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338 (17 October 2012)

Thanks again, I appreciate all of the advice - I'm almost looking forward to the being in court part if it means all of this section will be over!

tea_queen

Coupon-mad wrote: »

Yes - sadly that means you must remove all points about the POFA 2012 Schedule 4 because it doesn't relate to drivers.

Ah noo all of my points regarding poor signage are in there - can I still keep them in but without the Schedule 4 references?

Loadsofchildren123

Coupon-mad wrote: »

OK - I agree he should include it, but expect the claimant to deny it or their rep to say 'I have no knowledge either way of other PCNs but the defendant has shown no photographs to make this point and he would say that, wouldn't he. In addition, he has no knowledge of the reason for any other PCN that day.'

it definitely isn't hearsay, and definitely include it. The PPC can easily refute it, they will have a record of the PCNs issued on that day in that location - indeed, if they don't refute it then you could say that infers the OP is right.


But this is factual stuff for the witness statement, not the defence.

Loadsofchildren123

tea_queen wrote: »

1. It is admitted that Defendant is the owner of car registration #### and that she was the driver at the relevant times

2. It is admitted that the Defendant is unable to admit or deny the precise times she was parked in ### Car Park as she has no recollection of this. The Claimant is put to proof of the same.

3. It is denied that the Claimant has complied with Schedule 4, Protection of Freedoms Act 2012 in the following ways:

1. With reference to 2.2, The Defendant denies that she can have entered into any contract with the Claimant to pay a parking charge because:
3.1 the claimant failed to display satisfactory signage to inform by which the defendant can have known about and accepted any of the “parking charge” that applied to the aforementioned car park. Signage was placed in unsuitable locations such that it was not sufficiently drawn to the driver's attention and/or that it would not have been noticed by the driver (e.g. hidden behind parked cars, high up on poles and at pedestrian-entry viewpoints only)
3.2 [if applicable: there was no sign at the entrance to the site drawing drivers' attention to terms and conditions displayed inside the site]
3.2 There was no and without appropriate lighting to highlight said signage in these particular locations when it was dark (as it was at the time the Defendant parked). Available photographic evidence of signage has been provided within supporting documents. [nothing stopping you producing these now, but you'd normally do that at WS stage]

2.3.3 With reference to 2.3, the claimant failed to provide adequate notice of the terms of any contract, and therefore made no contractual offer to drivers, within the available signage to drivers in the following ways:
i. By displayed signage which was contradictory and which gave no clear information about giving unclear stipulations for any charges that can be incurred, e.g. one sign quotes parking as being “for Patrons whilst on the premises only”, but does not indicated no charge when the relevant retail store was closed.
ii. By displaying signage in which the only with any mention of the potential charge for parking being was lost in the small print and therefore not complying to signage requirements.


3.4 The signage failed to comply with the requirements of the Claimant's AOS Code of Practice, compliance with which is a compulsory term of the Claimant's AOS membership [is it the BPA or the IPC?]

3. With reference to 4.5, the maximum sum the claimant can recover from the keeper is the amount specified in the notice to keeper, and therefore the amount now being sought by the claimant is unlawful.I think this is irrelevant now

4. With reference to 7.2(b)[7.2b of what?], the claimant failed to provide the full detail of the circumstances relating to in which it is claimed the charge arose – at the time of writing this Defence statement, the Claimant has failed to provide evidence of the signage in question has been provided to show how the charge requirement was brought to the attention of the driver has been provided, and instead only that signage was present on site [dont' understand what you're saying in this last bit], a breach of paragraph 7.3 of Practice Direction 16.
In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letter such as the brief, clear and multiple signs in the Beavis case) there can have been no contract reached between the Claimant and the driver this fails to meet the requirements of Schedule 4 of the POFA.

4. It is further denied that the Claimant entered into a contract with the Defendant because the Claimant had no locus to enter into any binding contract with drivers. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance [not sure if this last bit belongs here because it's not the same as the point you make in the rest of this para - the offer/acceptance points relate to what's been said in the above pars don't they? The next wording relates to their ability to enter into a contract with drivers]. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with , nor was it authorised to issue proceedings against, the Defendant on its own account, as the carpark is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.
5. If there was a contract, it is denied that the penalty charge is incorporated into the contract. As per Thornton v Shoe Lane Parking [1971] 2 QB 163, special attention must be drawn to onerous terms must be made known before they can be binding a contract was formed. Here, the charge was not incorporated into the contract because the signage was not placed in easily viewable locations around the site as previously noted, could not be viewed before parking the car, and details of the “parking charge” were hidden amongst the fine print of the signage, making it difficult for a driver to review the “contract”.


[sorry am lost on para numbering, this needs its own number] Therefore, there was no contract formed because the Claimant had no authority to enter into any contract with the driver, made no offer capable of acceptance, and there was no acceptance of any terms by the driver. The driver did not enter into any ‘agreement on the charge’, no consideration flowed between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and legible. No consideration flowed from either the Claimant or the Defendant.

6. Alternatively, even if there was a contract, the provision requiring payment of £160 is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847 (the applicability of which was upheld in the Beavis case), clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons: (a) as the Claimant is not the landowner and suffers no loss whatsoever as a result of a parking overstay; (b) the amount claimed is evidently disproportionate to any loss suffered by the Claimant; and (c) the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years.

7. Further and alternatively, the provision requiring payment of £160 is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999. This is a term which falls within Schedule 1, paragraph(e) of the Regulations being a term ‘requiring any consumer who fails to fulfil his obligations to pay a disproportionately high sum in compensation”. The term was not individually negotiated and causes a significant imbalance in the parties’ respective rights and obligations, because the charge is heavily disproportionate in respect of a short overstay and is imposed even where consumers are legitimately using the carpark for its designated purpose. 1999 Regs no longer in force - see my next post

8. Save as expressely mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.


New para number: For the avoidance of doubt, the Defendant puts the Claimant to full proof of the entirety of its claim.

9. The Defendant disputes that the Claimant has incurred ‘Legal representative’s costs’ of £50 to prepare the claim. The Defendant refers the Court to the incompetent Particulars of Claim that disclose neither the basis for the claim nor a definite cause of action. I submit these ‘costs’ are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to report Gladstones to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.

10. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

11. 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.

12. I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support. This continued harassment for a sum of money which is escalating, yet is not my liability, is causing significant alarm and distress and in that respect is on all fours with the case of Ferguson v British Gas which also turned upon unreasonable contact from debt collectors regarding a debt not properly established in law, or owed at all. put these paras into the third person: the Defendant suggests....]


new para number: Likewise the Defendant disputes the amount which has been added to the original charge of £100 [assuming they've added £50 or so to it] - to the extent that any contract was formed by the signage, there was no term allowing the addition of this sum.


13. It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. [this is repeated above]

14. I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

As an unrepresented litigant-in-person, I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant’s case. It is difficult to defend a claim in an appropriate manner which has been so incoherently and briefly pleaded, in breach of CPR Rule 16.4 and Practice Direction 16, paragraph 7.3.

I believe the statements in this defence are true to the best of my knowledge and that as the Defendant, I am not liable for the sum claimed, nor any sum at all. The court is invited to strike out the claim as having no prospect of success.

Signed______________________

Dated __________________


Thanks for any feedback you can give at this stage, I plan to work on the rest of this tonight so that I can get it sent off during the course of this week (my deadline is the end of the month).

I'll post the up to date consumer legislation in a minute

Loadsofchildren123

This is copied and pasted so ignore para numbering

• 1. Consumer Rights Act 2015

Breaches of the Act include:

• 1. 1. s.68: Requirement for transparency
        (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
        (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
        The terms set out in the signage are not transparent, plan and intelligible, nor are they legible.
     2. S.62 and Schedule 2: The Act defines unfair terms and these include:

• 1. 1. 1. ’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…” (paragraph 2 of the Schedule) - this is breached by the disclaimers in the Claimant’s signage;
        2. “A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation” (paragraph 6 of Schedule 2) – this is breached by the imposition of a £100 charge for any breach;
        3. “A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract” (paragraph 10 of the Schedule) – the Claimant breaches this by its inadequate signage.
     2. The court must of course remember the imbalance between the Claimant, a professional parking operator, and a driver, an ordinary member of the public.
  2. Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013: As this was a distance contract, formed when one party was not present, the information required by Regulation 13 should have been provided in advance, but was not.

Loadsofchildren123

sorry about the bad typesetting, it's copied from another document.


Have you considered whether the signs had advertisement consent? Check your local authority's online planning portal. They probably didn't. Which is a criminal offence and you can then rely on this - I say the unlawful/wrongful acts are not just the criminal offence of the no planning permission, but also the breaches of consumer law as above.

Ex dolo malo non oritur actio
The Claimant is not entitled to rely on an illegal or immoral act in order to profit from it, pursuant to the doctrine ex dolo malo non oritur actio. In this case, there are three acts which are illegal and/or immoral: the installation/display of the Claimant’s signage on the Land/Site, trespass and the Claimant’s disregard of Regulations which apply to it and of the BPA CoP. The first is a criminal act, the last two, while not criminal, are undoubtedly immoral and should not be sanctioned by the court. Minor infringements might be forgivable but the wholescale, multiple breaches by the Claimant, and its ignorance of the laws which apply to it, should not be forgiven, particularly when it is obliged to familiarise itself with and follow the law by paragraph A2.4 of the CoP (including consumer law, contract law, and trespass).

• The rationale for the doctrine is set out in the early case of Holman v Johnson (1775) 1 Cowp 341where Lord Mansfield said:
  “The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio ["no action arises from deceit"]. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own standing or otherwise, the cause of action appears to arise ex turpi causa ["from an immoral cause"], or the transgression of a positive law of this country, there the court says he has no right to be assisted.”
• The principle was reaffirmed in RTA (Business Consultants) Ltd v Bracewell [2015] EWHC 630 (QB) (12 March 2015) where, at paragraph 34 of the judgment the above passage was cited.
• The Court’s attention is also drawn to Andre Agassi v S Robinson (HM Inspector of Taxes)[2005] EWCA Civ 1507. Whilst not wholly aligned to the issues in this case it has been produced because of the principle it extols that no one should profit from their unlawful conduct. The Court’s attention is drawn to paragraph 20 of the judgment
  “It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful”.
  Paragraph 28 continues –
  “cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.”

Loadsofchildren123

Unlawful signage:

1. The signage displayed on the Land/Site has no planning/advertising consent, which is required under the [in England: Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended) [In Wales The Town and Country Planning (Control of Advertisements) Regulations 1992 and the Town and Country Planning (Control of Advertisements (Amendment) (Wales) Regulations 2012]. The signs are an “advertisement” under the definition in the Regulations.

[England: Regulation 30] [Wales: Regulation 27] makes it a criminal offence to display advertisements (which these signs are) without the relevant consent. The local authority has confirmed that the signs have no planning/advertising consent (see email and list of all applications [B2 p152/3]).

The Claimant relies on the signs as having formed a contract with the driver [B1 p9, para 2(ii)]. If there was a contract between the Claimant and the driver, it was illegal at its formation because it was incapable of being created without an illegal act (the erection of the un-consented signs which the Claimant relies on as having made a contractual offer).


Where a contract is illegal when formed, neither party will acquire rights under it, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced


It was clearly unlawful for the Claimant to have in place the signs upon which it relies for the formation of that asserted contract. There has been a clear transgression of a law (the 2007 Regulations) and it is submitted that the Court should not “lend its aid” to this Claimant “who founds his cause of action upon an illegal act”.


Further, it must be contrary to public policy for a court to enforce a contract whereby a party will profit from its criminal conduct. ParkingEye v Somerfield Stores [2012] EWCA Civ 1338 concerned an alleged illegal contract. Whilst the facts of that case are not relevant, the Judge’s comments at paragraph 29 are of importance:

“At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently”.



In Somerfield the contract was upheld because the Claimant had no intention, when creating the contract, to deliberately break the law. Differently in this case, the problem arose at the formation of the contract and not in relation to any subsequent act: the Claimant did deliberately break the law by erecting the parking signs which it asserts stated contractual terms, without first having in place the mandatory prior consent required by law. Thus a crime was committed then. Therefore, the illegality in this action was not merely incidental to the creation and part of the performance of the contract as in Somerfield but was central to it. Somerfield guides us that where there was a chance to remove the illegality from future performance the contract could remain in force. In this action the illegality of the Claimant’s signage that existed on the day of the parking cannot be undone, even by any subsequent grant of advertisement consent.


At paragraphs 65-74 of the Somerfield transcript Laws LJ set out three factors which need to be considered in a defence of illegality. The Defendant submits that these should be considered and applied in this case:



the commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract;


the illegality is central to the contract and is not merely a minor aspect thus it should not be held to be too remote so as to render the contract enforceable;


the nature of the illegality: in this case it was a crime and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.



If the Planning Authority has been unaware of the signs (as it has told the Defendant), and has not therefore taken any formal action against the Claimant, this is irrelevant. Even if the Claimant were to obtain consent, this cannot and will not grant authority and legality for display of the signage prior to the approval date so that the crime being committed when the car was parked will remain a crime for all time.


The crime committed in this case has all of the characteristics of a “crime” and, it is submitted, has to be appropriately regarded with all the gravity society gives to crimes.


The Claimant is under a duty to the Court to provide full and fair disclosure by informing it of all relevant issues. The Claimant has failed to advise the Court that a criminal offence was being committed by the display of its signage.

Loadsofchildren123

You could also say that you believe they were trespassing in issuing your car with a ticket (another wrongful act)


Obviously you don't go into all the above detail in your defence, I've given you chapter and verse to read so that you understand what these defences are. You need to condense what's there: eg. the Claimant is in breach of S.xx of xx Act, which means that the terms of the contract are unfair and unenforceable..... or the Claimant does not have advertisement consent for its signs at the site, which is a criminal offence pursuant to xxxx. Accordingly, pursuant to the doctrine of Ex..... the Claimant cannot rely on its wrongdoing on which to found and bring a claim against the Defendant. [ you keep the chapter and verse part of all of this until later]


They'll go into panic mode having to look up all these doctrines and Acts and trying to work out how it's a criminal offence.

tea_queen

Loadsofchildren123 wrote: »

They'll go into panic mode having to look up all these doctrines and Acts and trying to work out how it's a criminal offence.

:shocked: .... :T

I think I might be seeing stars as well after all that! Wow thank you so much for your posts, I appreciate you've gone to a lot of work to edit all of that for me and provide the extra reading material.

I've edited most of my defence as you have suggested so far, just a couple of queries:

3.4 They are part of IPC AOS Membership (as of 28/01/15) - does this make a difference?

4 (7.2b query) - this was supposed to have been linked to the Schedule 4 of POFA, however I may have gotten confused with it all and made it irrelevant!

Point 5 - where you've put this should be split into a new point, there is text before, so is this point 5 and point 6, with the split at 'Therefore'?

5. Here, the charge was not incorporated into the contract because the signage was not placed in easily viewable locations around the site as previously noted, could not be viewed before parking the car, and details of the “parking charge” were hidden amongst the fine print of the signage, making it difficult for a driver to review the “contract”. Therefore, there was no contract formed because the Claimant had no authority to enter into any contract with the driver, made no offer capable of acceptance, and there was no acceptance of any terms by the driver. The Defendant denies that the driver would have agreed to pay the original demand of £100 had the terms and conditions of the contract been properly displayed and legible. No consideration flowed from either the Claimant or the Defendant.

7 - Before I change anything, you've said the 1999 regs mentioned are no longer in use and to reference the 2015 version - do I keep the 1999 part in and add to this or remove and replace altogether?


I'm just looking up the planning online as suggested and will then post up my new version. Unfortunately I need to print and post this tomorrow, so any help you can give at answering the above would be greatly appreciated but if not I will do my best

Thank you again LoadsofChildren123!