1 Big Car Park, 2 landowners, Valid parking ticket but Parking Charge Issued

claxtome

Here is my draft Skeleton argument:

SKELETON ARGUMENT ON BEHALF OF XXXXX
PREAMBLE
1. This skeleton argument is to assist the Court in the above matter for the hearing dated XX/XX/XXXX.
2. References in [] are to tab, page and para numbers of the defence bundle.


DEFENDANT ARGUMENTS
1. The Defendant’s primary defence is inadequate signage as mentioned in Defence [Red Tab page 3 para 4] and Witness Statement [Yellow Tab page 6 paras 3-5, page 7 paras 7 and 9 and page 8 paras 11 and 12].

2. The car park was on XX November 2016 one large car park [Green tab page 11], separated into two parts which are named the same, one part run by the council [Green tab page 12] and one part by the Claimant [Green Tab pages 19 and 21]. The boundary between the 2 car parks is shown on the plan as a blue dotted line between points C and E [Green Tab page 11] with the council owned part to the south and the Claimant to the north. On the day in question the cost of a daily ticket was the same in both parts adding to the confusion.

3. At the relevant date travel was allowed between the two areas as there was no fence, road markings or any other possible demarcation [Green tab pages 15 and 16]. In fact drivers could enter through a boundary entrance shown on the Defendant’s plan near red letter H [Green tab page 11] to either part of the car park. There is no signage from this extra entrance or at the boundary to highlight to drivers that there were two different areas of the car park subject to different management and terms & conditions [Green tab pages 15 and 16] and doesn’t conform to the IPC Code of Practice [Purple Tab “Part E” on page 22, para “Entrance signs should”].

4. The Defendant has produced a helpful plan of the carpark showing all the relevant features [Green Tab page 11] which will be referred to the as “the plan” henceforth without the reference. The red arrows on the plan show the route driven in the car park. The defendant has explained how he came to drive into the council-run part of the car park, A on the plan, and how he stopped to purchase a ticket at machine [Green tab page 14], B on the plan, and then parked, D on the plan, in his Witness statement [Yellow tab page 6 para 3]. The Claimant’s part of the car park has signs at entrances shown on the plan as F and G [Green Tab pages 19 and 21] but none at the boundary entrance.

5. The Defendant produced a short video on 23rd January 2017, nearly two months after the date in question, of the route taken in the car park and what signage was/wasn’t present. [Green tab page 35]. The video showed a new fence had been erected presumably at the boundary of the car park [Green tab pages 22 and 23]. This video and fence are described in the Witness Statement [Yellow tab page 7 para 7 and page 8 para 10].

6. Sometime after he received the PCN which is the subject of these proceedings, the Defendant discovered that rubble had been dumped in the car park along the boundary between the two different parts of it [Yellow tab page 7 para 6, Green tab page 17] shown on the plan at point H. He enquired of the council using a FOI who said “The council were not aware of why this was placed there and what its purpose was” [Dark Blue tab 5 page 55 para labelled c]. Defendant’s case is that the retrospective marking out of the demarcation, including rubble, between the two parts of the car park, preventing drivers from passing freely between them shows that there has been confusion caused to drivers.

7. The Defendant has discovered that on Friday 29th September another driver who had suffered exactly the same fate as him had appeared before this court, when the Claimant’s claim was dismissed. The defendant has filed and served an extra Witness Statement from this driver and submitted the Witness Statement from their original case as evidence in this one. The case involved identical facts and the court held that the Claimant’s signage was inadequate as can be seen by looking at her evidence. [Orange tab pages 36-40].

8. The response to the Freedom on Information request received from the council demonstrates:

a. The council were aware of the need to separate their land, but on balance (taking into account the Claimant’s Witness Statement) had not done so at the material time.

b. I put it to the Claimant to refute that it also demonstrates that the PPC were aware that there was a parking issue where cars were straying from one parking zone into another and therefore erected a physical barrier to prevent this.

c. If a) and/or b) are recognised by the court it follows that this is tacit recognition of the misleading nature of the signage which showed conflicting terms.

9. On the day the defendant had every intention to pay for parking, and did so, and genuinely thought they had complied with the terms of parking in the car park (and was justified in their belief). The defendant relies on Jolly v Carmel (2000) which 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. Witness Statement [Yellow Tab page 6 para 22].

REFUTTING CLAIMANT EVIDENCE AND ARGUMENTS
1. The Claimant’s own evidence shows that their signage was inadequate [Grey tab page 68 Photo of signage] and the Defendant notes that this is in breach of Claimant’s contractual obligations to the landowner pursuant to which it claims it has the right to bring these proceedings [clause 3 of the contract, Grey Tab page 61].

2. The Contract submitted as evidence is incomplete and is now out of date. Clause 8 states “This agreement is for an initial period of one year and thereafter is subject in accordance with the terms and conditions overleaf” therefore there are missing pages describing terms and conditions. Also the contract was signed on XX Feb 2015 so is now out of date.

3. The Claimant’s map of signage submitted as evidence shows no border between the Claimant’s part and the Council-run part:

a. The defendant bought a ticket from a machine within the boundary of the plan which is said to be the Claimant’s parking site. The Claimant must therefore prove why the ticket displayed was not valid.

b. The Claimant is unable to specify or delineate the boundary on a plan, it is both understandable and inevitable that they failed to do so in the car park.

4. The Claimant relies on Vine v London Borough of Waltham Forest (2000) that “once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice”.

a. The Defendant refutes this as there was no distinct signage. The Defendant entered the site which displayed conflicting signage/contract terms and complied with them, the Defendant cannot be deemed to have agreed to any terms of parking specific to the Claimant (i.e. distinguishing Vine v London Bor. of Waltham Forest because the Claimant's signs (if any) were neither sufficient in number or sufficiently distinct from those complied with).

5. The Claimant relies on the Court of Appeal case of Vehicle Control Services v Her Majesty’s Revenue & Customs [2013] EWCA Civ 186 and Parking Eye v Beavis (CA 2015), as establishing a precedent that the present Claimant can bring proceedings in its own name [Green Tab Page 33] and [Statement of Claimant para 10 and 11].

a. The Defendant asserts that the facts of VCS v HMRC were substantially different from the present case, and that therefore the case can be distinguished from the present case for the following reasons:

i. The VCS v HMRC case was primarily concerned with VAT liabilities, and the question of whether VCS’s charges should be considered a charge for a service, and therefore subject to VAT. It was held that they were damages for breach of contract, and therefore not subject to VAT. However, the terms under which motorists were deemed to have entered into a contract with VCS were materially different from the present case. In VCS v HMRC, the landholder appointed VCS to operate a permit scheme, whereby those persons authorised to park received a permit, together with a letter from VCS outlining its conditions of use.

ii. It was held, at para. 27, that " ... in my judgment the significance of that is that in effect VCS promised to contract with persons nominated by the landowner. It does not make the contracts “contracts entered into as agent for the landowner”. No landowner's name appears on the permit or the terms and conditions. By clause 4.3 of the contract between VCS and the landowner, the landowner agreed to ensure that all authorised vehicles displayed a VCS permit. The effect of that clause was that the landowner gave up the right to grant direct authorisation to anyone to park in the car park. The right to park could only be conferred by means of a contract between VCS and the motorist. If there was any agency it was an agency for an undisclosed principal. In the case of an agent acting for an undisclosed principal, the agent can sue and be sued on the contract. "

iii. It is clear from this that VCS were not acting as an agent for the principal, they were contracting in their own right, for an undisclosed principal. In the present case, the Claimant does hold himself to be an agent of the principal, whose identity is disclosed in both the Claimant's signs and the witness statement purportedly signed by the landholder's representative.

b. Also, in VCS v HMRC it was held that any fines were for 'damages' or 'trespass' neither of which are able to be recovered by a parking firm not in possession. Only a landowner can pursue a driver for damages or under tort (trespass). Not even ParkingEye in the Beavis case tried to argue 'damages' and the Judges there said:

i. 97. ParkingEye concedes that the £85 is payable upon a breach of contract, and that it is not a pre-estimate of damages. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing by the unauthorised use resulting from Mr Beavis overstaying.

ii. Lord Mance at 190: “Mr Beavis… was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract”.

iii. and later: ‘’But it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye. He would have been liable to the landowner in tort for trespass, but that liability would have been limited to the occupation value of the parking space.’’

Note: The references in the final version will be checked. It was easier to leave them in when i posted it on this forum.

As always any comments/suggestions for improvement are gratefully received.

I am particularly interested in any further arguments/avenues i can explore.

Lamilad

but not the FOI as it is not a pleading.

Does it say anything that significantly assists your case?

claxtome

Does it say anything that significantly assists your case?

See draft Skeleton above paras 6 and 8.

Lamilad thanks for all you responses you have added to this thread. I am surprised that LoC (as you may know a solicitor) suggested I produce a new paginated bundle which has taken quite a bit of time if she didn't think it wasn't in my best interest. Your comments, from a long term member of this forum whose advice I trust too, make me very worried about doing it until she responds or Johnersh, another legally trained person, replies.

KeithP

In 4 a), "distinguishing Vine v London Bor. of Waltham because..."
should be "distinguishing Vine v London Bor. of Waltham Forest because..."

I.e. the word Forest is missing.

And Forest is miss-spelt a few lines above.


Is it right that the paragraph numbering restarts at 1) after the heading REFUTTING CLAIMANT EVIDENCE AND ARGUMENTS?

claxtome

KeithP/I] - done amendment to add in 'Forest' in the Skeleton post above - thanks.

You are right about paragraph renumbering - in final version will change the document so it has unique numbered paras.

Lamilad

Green tab page 35

How many pages is your SA? The judge may disallow it if it's more than 25 pages.

claxtome

Johnersh suggested that on a very similar case to ->

Put them on notice that you require their company employee to attend and address the following questions:

1. How many other tickets are pursued by them where the defendant is said to have complied with conflicting signage and/or to be confused by their signage

2. Whether they have taken any steps to prevent drivers from entrance A parking in area B (and vice versa).

The point is that the claimant should not profit from their negligent failure to zone two adjacent car parks. If this was not an issue, they would not have now taken action as they have after the event.

I am willing to do this but wondering do I present an argument of entrapment in my skeleton as well?

claxtome

How many pages is your SA? The judge may disallow it if it's more than 25 pages.

My skeleton argument is 4 pages long the referrals are to my court bundle
(Green tab is my evidence document)

Lamilad

claxtome wrote: »

My skeleton argument is 4 pages long the referrals are to my court bundle
(Green tab is my evidence document)

"2. References in [] are to tab, page and para numbers of the defence bundle"

claxtome

2. References in [] are to tab, page and para numbers of the defence bundle"

Thanks Lamilad - altered the draft skeleton post to add the text in bold