ES Parking Enforcment Ltd Ticket face down charge notice

System

For my similar case the Judge wanted witness statements exchanging 3 months before the hearing not sure if the same with yours.

Wise words from claxtome to check what it actually says. If you don't - read my signature.

meagainin

I've got a few weeks and will be making a start on it at the weekend but in the mean time I've written to the judge to request they stay the claim as per Loadsofchildren's suggestion in January.
I'm not expecting anything to come of it but I thought it was worth a try.

Coupon-mad

meagainin wrote: »

Points 1 & 2 relate to the court date and the date the statements are required by.

OK that's the important thing for you to be ready, beforehand, not leaving it late because of wondering if they've paid the hearing fee and procrastinating, like some posters do.

Preparation is key, so start reading some good WS/evidence examples from the NEWBIES thread and on any live court claim thread ahead of yours.

meagainin

My case is very similar to Claxtome's and relates to the same care park so I'm going to be having a good read through his thread this weekend as well as going back through post #2 to make sure I know what I need to do.

meagainin

Here's my first draft of my witness statement. I've borrowed heavily from Claxtome's, amended to suit my circumstances but I'm getting bogged down with whether something should be in the witness statement or the skeleton argument.
Any advice would be greatly appreciated.

I, XXX, of YYY will say as follows:

1. I am the Defendant in this matter. I am an unrepresented consumer who is not experienced at attending county court. In this statement I will refer to the documents contained in exhibit marked XXX1, by page number.

2. On the 1 September 2017 the driver parked in Winwick Street Car Park, walked to the nearest pay and display machine, purchased a ticket for the day and ensured that the ticket was displayed face up on the dashboard of the car before leaving. The driver as a matter of course will always double check that the parking ticket is correctly displayed.

3. On 15 September 2017 I received an envelope containing a postal Parking Charge Notice to Keeper from ES Parking Enforcement Ltd, which was issued on 10 September 2017 (see xxx). This was a surprise to me but fortunately all parking tickets for the car are kept in the glove compartment for at least a month and due to this I was able to locate the relevant ticket. A postal Parking Charge Notice for the scenario made me wonder if the parking firm is hoping the purchased parking ticket would have been thrown away.

5.The Claimant provided no evidence of who was driving the car and cannot presume that the Registered Keeper was the driver at the time of the alleged contravention.

4.Barrister and parking law expert Henry Greenslade was the 'Parking on Private Land Appeals' ("POPLA") Lead Adjudicator from 2012 - 2015. This is an independent appeals service offered by the British Parking Assosciation ("BPA"). Mr Greenslade's opinion in the POPLA Annual Report 2015 which confirms that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. (page x of xx).


5. The Registered Keeper can only be held liable Under POFA 2012 if the Claimant meets the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. As the Claimant's notice is not fully compliant with the statutory wording, the Claimant is unable to hld the Keeper of car liable under the strict 'keeper liability' provisions.

6. I tried several times to use the Claimant's website to appeal the Parking Charge as the Registerd Keeper including a copy of the ticket as evidence that parking had been paid for and therefore I was not liable but the Claimant's website would not accept my photographic evidence even though I tried to resize the photograph more than once. When I tried again on 2 October 2017, the website would not accept my appeal as it stated that I was out of time. This was incorrect and incontravention of the Claimant's Accredited Operator Code of Practice which states in Part B, Section 6 that Operators should 'Allow a minimum of 21 days from imposition for the motorist to lodge an appeal with you and make representations' . International Parking Community Code of Practice - see Schedule 4.

7. I then received a further demand dated 1 October 2017 with an increased amount owing with no explanation for the increased amount and this letter threatened me with further debt recovery (page XX of XXX1). No figure for additional charges was agreed, or communicated to me, nor could it have formed part of the !!!8216;alleged!!!8217; contract because no such indemnity costs were quantified on the Claimant!!!8217;s signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print, when they were not. (See specimen sign on 888).

8. A Letter Before Claim (page XX of XXX1) dated 9 November 2017 was received. Once again the sum of money demanded had increased, with no explanation. I responded (page XX of XXX1) on 3 December 2017, asking for more details and a copy of all documents purporting to the matter. Although my reply was acknowledged, I did not receive a response from the Claimant.

9. I then received a Claim Form dated 8 January 2018 (page xx of XXX1). The Particulars of Claim set out in the Claim Form do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies what the terms of the alleged contract were, or how they were breached. The Particulars are not !!!8220;clear and concise!!!8221; as is required by CPR 16.4 1(a). There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. It just states !!!8220;breaching terms of parking on the land at Winwick Street!!!8221; which does not give any indication of on what basis the claim is brought. The claimant also failed to provide a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A).

10. I dispute that the Claimant has incurred £50 Solicitors costs to pursue an alleged £100 debt, the costs of which are in any case not recoverable. The claimant has described the charge of £50 as !!!8216;legal representative!!!8217;s costs!!!8217; not !!!8216;contractual costs!!!8217; CPR 31.14 does not permit these to be recoverable in the Small Claims Court
The Claimant has at no time provided an explanation of how the sum claimed has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to the £160 now sought.

11. Under Schedule 4 of POFA 2012 also states that the only sum a keeper can be pursued for is the sum on the Notice to Keeper.

12. Under Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (amended) A parking operator needs to have Advertising Consent for signs displayed in the car park. The only relevant Advertising Planning Consent found for the car park in question has now lapsed (pages XX-YY of XX1). I therefore hold to strict proof that they have Claimant has advertising consent for signage.

13. The signage on Winwick Street car park is also inconsistant with at least three signs all showing different wording (see xx).

14. On the day in question the driver had every intention to pay for parking and did so. The driver genuinely thought they had complied with the terms of parking in the car park (and was justified in that belief). There must either have been a gust of wind when the the door was closed or one of the windows may have been slightly open and it may have been dislodged after the car was left and this small human error comes under the de minimis principle.

15. In Jolley v Carmel Ltd [2000] 2 !!!8211;EGLR -154, it was held that a party who makes reasonable endeavours and takes reasonable steps to comply with contractual terms, should not be penalised for breach outside of their control.

16. If you look closely at the ticket you can see it is made of a flimsy piece of paper with no sticky part to it so that it could be fixed in place on the dashboard or windscreen. I would be interested to know how many Parking Charge Notices for similar circumstance occur for this car park. Since receving this charge, I personally have become aware of three other people who have received a Parking Charge Notice at this car park for the same reason.

17. Fluttering tickets are routinely accepted as a valid defence to Council Penalty Charge Notices and whilst contractual principles are not applied to such notices, it is indicative of the fact that circumstances out of your control, and where the driver has clearly paid for the parking, are deemed to be a good reason for those notices to be cancelled.

18. I include the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' because the Supreme Court (and the Court of Appeal Judges) in Beavis were happy to draw similarities with Council PCNs:
http://www.manchester.gov.uk/download/meetings/id/3259/joint_report_of_the_parking_adjudicators_for_engla nd_and_wales_2006

!!!8216;In DB05057D the adjudicator said: !!!8220;!!!8230;having seen the original ticket I note that it is made of rather thin paper which is likely to be dislodged when a car door is shut. It may be that the Council would argue that it is the driver's responsibility to ensure that the ticket is on display when the vehicle is left, but on the other hand if it chooses to issue pay and display tickets made of such thin paper it must expect that now and again this type of situation will arise.!!!8221;!
In HV05040D the adjudicator accepted the appellant!!!8217;s evidence that she had displayed the ticket on the dash and checked after closing the door that it was still there. He said: !!!8220;I am not aware of any signs in the car park suggesting the use of adhesives by motorists when parking their cars."

19. The Claimant has no Locus Standi to bring this claim because:
The party which entered into the Parking Contract, and was granted rights to manage parking on the Land/Site was ESPEL. The party identified in the signage as the offeror was ESPEL. However, ESPEL has no legal personality and was not capable of entering into any contract, thus rendering both the Parking Contract and any contract with the driver incapable of performance or enforcement.

The party Total CarPark Solutions in the Parking Contract, is claimed has the right to grant the rights in the Parking Contract is not the landowner or another entity authorised by the landowner.Total CarPark Solutions, or similar name, is not even a recognised company according to Companies House.

Strict proof is required that there is an assignment of contractual rights from the landowner to the Claimant. The Claimant has failed to establish an express conferral of rights has taken place pursuant to Section 1(1)(a) and 1(3) of the Contracts (Rights of Third Parties) Act 1999 which require terms to identify the Claimant and express terms granting the Claimant the right to enforce the contract; or the right to sue.

The Land is divided into 4 title numbers; 3 Freehold and 1Leasehold; none of which mention the landowner or leaseholder similar to Total CarPark Solutions.

Indeed the landowner according to titles CH178919 and CH506108, and the leaseholder according to title LA139982, is Winwick Partnership which is registered in England and Wales under ref LP009364. There are two general partners; Faraday Management Ltd (registered in the Isle of Man) and Winwick Ltd, (Register 04969819) [p93, p98 and p101].

The landowner according to the final title CH588779 is ZOE Warrington Ltd which is registered in England and Wales under Register 03563382 [p105].

The Defendant relies on Ebbw Vale Urban DC v South Wales Traffic Area Licensing Authority [1951] 1 All ER 806 (as set out in Air-Care Ltd v Blais and Les Immeubles Pro-Car Limitee et al) in which it was held that each entity in a group of companies (and their rights and obligations) is separate and distinct, and for one connected business entity to pass rights onto another, those rights must be granted by way of a formal agreement. If there is no formal agreement, the rights/obligations of one entity cannot become the rights/obligations of another entity, even if it is connected/part of the same group of companies/under common ownership.

20. I have produced a map of the car park (see xx), which shows the entrance A where I entered the car park, position B where I parked and the location of the ticket machine used as C on the map.

I believe that the facts stated in this statement is true

Le_Kirk

14. On the day in question the driver had every intention to pay for parking and did so. The driver genuinely thought they had complied with the terms of parking in the car park (and was justified in that belief). There must either have been a gust of wind when the the door was closed or one of the windows may have been slightly open and it may have been dislodged after the car was left and this small human error comes under the de minimis principle.

Maybe sounds better if you put the ticket.

Coupon-mad

14. On the day in question the driver had every intention to pay for parking and did so. The driver genuinely thought they had complied with the terms of parking in the car park (and was justified in that belief). There must either have been a gust of wind when the the door was closed or one of the windows may have been slightly open and it may have been dislodged after the car was left and this small human error comes under the de minimis principle

I would remove 'human error' because you cannot know if the driver was at fault. Maybe *someone* leaned across the car and dislodged it after the driver had left.

Here, append the printed Adjudicators' Report page, not a link. The court will not follow a link and print it out for you.

18. I include the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' because the Supreme Court (and the Court of Appeal Judges) in Beavis were happy to draw similarities with Council PCNs:
http://www.manchester.gov.uk/download/meetings/id/3259/joint_report_of_the_parking_adjudicators_for_engla nd_and_wales_2006

meagainin

Bumping for any further advice.

meagainin

Here, append the printed Adjudicators' Report page, not a link. The court will not follow a link and print it out for you.[/QUOTE]

I only want to include part of one page of the report, am I ok to just provide those bits rather than the whole thing?

claxtome

I only want to include part of one page of the report, am I ok to just provide those bits rather than the whole thing?

I would say so as I seem to remember some parts of it won't help your case.
(Should have thought about doing that for my similar case )