Please put me out of my misery...

mlang88

Coupon-mad wrote: »

Did you acknowledge the claim via MCOL, as post #2 of the NEWBIES thread tells you how?

And what dates are involved, as safarmuk asked, we need to know?

Hi yes, and I followed the step by step instructions on the thread. The issue date on the claim form from Northampton was the 2nd May which I think gives me until Sunday does it? Or the next working day? 33 days in total

mlang88

I'd also just like to say that the letter is addressed to my parents house, somewhere I haven't lived in two years. A friend of mine who works at a legal firm says that they would have to re-issue this? Is that my fault though, if the car is registered at that address still?

mlang88

Hi, so i've gone through the newbies thread #2 and sought a new template doc to work from - one posted by fellsider in a case brought by ES parking enforcements fairly recently. I have made a second attempt - how is this as a start? I will include the acknowledgement at the start once I know I am on the right lines:

(1) The Claimant makes reference to a breach of the terms of parking in the particulars of its claim. The sign at this site, is inadequate to form a contract with the motorist.
I, The signage at this site is inadequate to form a contract with the motorist. The wording is deliberately ambiguous.
II, The wording on the sign asks motorists to correctly display a pay and display ticket from the ticket issuing machine, or electronically, whilst also asking motorists to display a valid parking permit.
III, Under Section 2 of POFA 2012, a relevant contract is referred to as ‘arrangements made by the owner/occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of a vehicle on the land’
iv. The terms described in the Claimant’s signage are unclear, moreover, pay and display machines are still active on this particular site (pictures provided). It is unclear, according to the terms listed by SIPS Car Parks Ltd, whether motorists are required to display a valid ticket, or whether they must only park with a valid permit. There is nothing to discourage motorists from using this pay and display machine.
v. It is noted that at some point, this site changed from a Pay and Display car park, into a permit only car park. Unfortunately, there is no information to suggest when this occurred, the defendant has obtained stock images dated June 2015 which suggest it remained a Pay and Display car park until at least this date.
vi. It is also noted that the defendant had parked on this site, and has proof of which, on 10 separate occasions. In these instances, the defendant paid £2.20 (inc. online booking fee) to park a vehicle on this site for eight hours a time. On the 11th occasion the defendant parked on this site, the Claimant issued a parking charge.
vii. On the final occasion the defendant parked a vehicle on this site, a valid ticket was visible in the window (pictures have been supplied), however, a parking charge was administered. The defendant has not parked at this site since.
vii. In the absence of ‘adequate notice’ of the terms and the charge (which must be in
large prominent letters such as the brief, clear and multiple signs in the Beavis case)!
this fails to meet the requirements of Schedule 4 of the POFA.
(1) 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 accessible.

Coupon-mad

mlang88 wrote: »

I'd also just like to say that the letter is addressed to my parents house, somewhere I haven't lived in two years. A friend of mine who works at a legal firm says that they would have to re-issue this? Is that my fault though, if the car is registered at that address still?

Yes that's your issue, but it's OK from a DVLA point of view, as long as the car should be registered there (i.e. it is used there and you are contactable there). Your friend is wrong. Parking firms issue claims to the DVLA address unless they have been told of another address (e.g. in an appeal).

You can cover the new address at the start of your defence. State it clearly that xxxxx xxxxx is your address for service.

I would make your defence clearer:

II, The wording on the sign has always asked motorists to correctly display a pay and display ticket from the ticket issuing machine and it is not disputed that the driver did so. At some unidentified point in time, additional wording has been added to the signs but this is not stated at the Pay & Display machines where regular local parkers, familiar with the site rules, would go. The remote signs now also ask motorists to display a valid parking permit but this was never communicated at all to the driver and the 'contract' fails to meet Lord Denning's 'red hand rule' as regards contract terms on signs which must be drawn to the attention of consumers beforehand.

You could also add another point that quotes from the applicable Code of Practice, about putting up additional signs to communicate any change in enforcement (either at new sites or where rules have been changed). And state that they have failed to comply with their own Code of Practice in that regard.

You should also have a statement clearly distinguishing tis case from the Beavis case, something like this:

https://forums.moneysavingexpert.com/discussion/comment/72595344#Comment_72595344

safarmuk

I would go even further personally as I believe this:

...
In addition to the above,

* Vehicles must fully display a valid parking permit in the windscreen or have a valid electronically registered permit (applicable to individual bays where relevant)

Could be interpreted to mean that you only need a permit or e-registered permit when you park in relevant individual bays. I mean seriously, that sign can be interpreted in different ways, its not clear at all.

Coupon-mad

Agreed, and ambiguity must be interpreted in the way which most favours the consumer (Consumer Rights Act 2015).

mlang88

Brilliant, thanks guys I'll make changes and update this evening. I realise you help a lot of people in similar positions so your patience and help is much appreciated. Did feel as though my defence wasn't particularly long but I guess that doesn't matter so much if the additional arguments are irrelevant.

Coupon-mad

I agree, I think your defence is specific to showing there was no agreed contract. You have a strong main defence.

And anyway if you add/adapt the linked point about distinguishing your case from Beavis, it will be longer.

As per usual, the defence needs a Statement of truth and your signature/date (so print it out, then scan that document) then email it to the CCBC.

And as they have a backlog, also email it to the other side as a courtesy and keep proof you did so (copy yourself in, to prove sending/receipt to CCBC and the other side).

mlang88

Hi, once again, thanks so much for considering this case and giving your advice. I have attached a reviewed defence based on your advice above - I have included the Beavis case and how it is distinguished (the inadequate signage part). The only thing I wasn't sure about was the ANPR data use signage, wasn't sure if that was relevant - think it's about data protection but not sure how that's relevant? Anyway, please let me know what you think of the below...

Preliminary matters.

The defendant wishes it be known that the address this claim was served to is no longer valid. The following address should be used for all future contact:

xxxxxxxxx

Statement of defence

I am xxxxx, defendant in this matter and deny liability for the entirety of the claim for the following reasons:

(1) The Claimant makes reference to a breach of the terms of parking in the particulars of its claim. The sign at this site, is inadequate to form a contract with the motorist.
I, The signage at this site is inadequate to form a contract with the motorist. The wording is deliberately ambiguous.
II, The wording on the sign!has always asked!motorists to correctly display a pay and display ticket from the ticket issuing machine and it is not disputed that the driver did so.!At some unidentified point in time, additional wording has been added to the signs but this is not stated at the Pay & Display machines where regular local parkers, familiar with the site rules, would go.!The remote signs now also ask motorists to display a valid parking permit but this was never communicated at all to the driver and the 'contract' fails to meet Lord Denning's 'red hand rule' as regards contract terms on signs which must be drawn to the attention of consumers beforehand. The signage also states that ‘Vehicles must fully display a valid parking permit in the windscreen or have a valid electronically registered permit (applicable to individual bays where relevant)’. This could be interpreted to mean that motorists need only a permit or e-registered permit when you park in relevant individual bays. The defendant proposes that this signage presents multiple ambiguities.
III, Under Section 2 of POFA 2012, a relevant contract is referred to as ‘arrangements made by the owner/occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of a vehicle on the land’
iv. The terms described in the Claimant’s signage are unclear, moreover, pay and display machines are still active on this particular site (pictures provided). It is unclear, according to the terms listed by SIPS Car Parks Ltd, whether motorists are required to display a valid ticket, or whether they must only park with a valid permit. There is nothing to discourage motorists from using this pay and display machine.
v. It is noted that at some point, this site changed from a Pay and Display car park, into a permit only car park. Unfortunately, there is no information to suggest when this occurred, the defendant has obtained stock images dated June 2015 which suggest it remained a Pay and Display car park until at least this date.
vi. It is also noted that the defendant had parked on this site, and has proof of which, on 10 separate occasions. In these instances, the defendant paid £2.20 (inc. online booking fee) to park a vehicle on this site for eight hours a time. On the 11th occasion the defendant parked on this site, the Claimant issued a parking charge.
vii. On the final occasion the defendant parked a vehicle on this site, a valid ticket was visible in the window (pictures have been supplied), however, a parking charge was administered. The defendant has not parked at this site since.!
viii. In the absence of ‘adequate notice’ of the terms and the charge (which must be in
large prominent letters such as the brief, clear and multiple signs in the Beavis case)!
this fails to meet the requirements of Schedule 4 of the POFA.
(1) 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 accessible.

(2) i. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.
 
ii. Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
(a) Ambiguous in its terms on site entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.!
(b) Non-existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(c) It is believed any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from an authorised party using the premises as intended.
(d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.

I believe that the facts stated in this Statement of defence are true.

Coupon-mad

If yours was a PCN on the windscreen then ANPR cameras are not relevant, so you can remove that bit.

You can adapt yours to be more like this one, which uses the Olley v Marlborough Court case and Jolley v Carmel and has other similarities:

https://forums.moneysavingexpert.com/discussion/comment/72425544#Comment_72425544

Feel free to plagiarise some of that as I could see several bits that would fit your case. Beefs it up a bit more!