fluttering ticket going to court

claxtome

Thanks for you help Castle and Fruitcake.

Here is my final version of Skeleton Argument (SA) unless someone has some late suggestions/amendments:

IN THE XXXX COUNTY COURT Claim Number: XXXXX

ES Parking Enforcement Ltd
(Claimant)
-AND-

XXXXX
(Defendant)

___________________________________________________________________________

DEFENDANT'S SKELETON ARGUMENT
FOR THE HEARING XX.03.18
___________________________________________________________________________


Terms used in this document:

Beavis Case: Cavendish Square Holdings BV v Talal El Makdessi; ParkingEye Limited v Beavis [2015] UKSC 67
BPA: British Parking Association
CoP: Code of Practice (issued by both BPA and IPC)
ESPEL: ES Parking Enforcement Ltd !!!8211; issued the NtD and NtK in this case
IPC: International Parking Community
The Land: Land near XXXX Street, YYYYY [Green tab p18]
NtD: Notice to Driver
NtK: Notice to Keeper
The Parking Contract: The agreement dated 12.02.15 between Total CarPark Solutions and ESPEL exhibited to the Claimant!!!8217;s Statement [Orange tab p39].
PCN: Parking Charge Notice (the same as the NtD, a !!!8220;ticket!!!8221; stuck to the windscreen of a vehicle informing the driver of a charge)



References in [] are to tab, page and paragraph numbers of the Defendant!!!8217;s bundle.
!!!8195;
Summary of Defendant!!!8217;s position
The suggest approach to this matter is for the court to decide in turn upon the following issues:
ISSUE A: Has the Claimant Locus Standi to offer a contract?
ISSUE B: Is the Signage consistent and permitted to be displayed?
ISSUE C: Was the contract between the Claimant and the Defendant breached at all?

ISSUE A: Has the Claimant Locus Standi to offer a contract?
1. The Claimant has no Locus Standi to bring this claim [Red tab p6 para7] because:

1.1. The party !!!8216;Total CarPark Solutions!!!8217;, in the Parking Contract, is not the landowner or another entity authorised by the landowner. !!!8216;Total CarPark Solutions!!!8217;, or similar name, is not even a recognised company according to Companies House [Orange tab p39].

1.2. Part B Paragraph 1.1 of the IPC CoP specifically provides that the Claimant must have written authorisation of the landowner [Blue tab p60]. Compliance with the CoP is mandatory. Implicit in this is that Claimant would have no rights under the Parking Contract if they were not granted by the landowner.

1.3. The Land is divided into 4 title numbers; 3 Freehold and 1Leasehold; none of which mention a landowner or leaseholder similar to !!!8216;Total CarPark Solutions!!!8217; [p88].

1.4. 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].

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

1.6. 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.

1.7. The Defendant also relies on:
ParkingEye Ltd v Gosnold (parking contract with non-landowner not valid)
ParkingEye Ltd v Rickard (Claimant did not produce evidence of a contract with the landowner).

1.8. The Parking Contract evidenced by the Claimant is incomplete as Clause 8 mentions !!!8220;..terms and conditions overleaf!!!8221; and now out of date as was valid for 1 year and signed on 12.02.15. [Orange tab p39].

ISSUE B: Is the Signage/Contract consistent and permitted to be displayed?
2. The signage displayed on the Land on the relevant date (XX.XX.17) is inconsistent:

2.1. The printout of the sign exhibited to the Claimant!!!8217;s Statement [Orange tab p40] cannot be a true copy of the signage displayed at the relevant time, as the Defendant has discovered different signage on the Land [p87].

3. The Claimant!!!8217;s advertising consent for signage has expired:

3.1. The Defendant!!!8217;s evidence shows it expired on 24.02.17 long before the day in question [Green tab p28-31]. The Claimant!!!8217;s statement refutes this but has not provided any evidence to back this. This proves the Claimant is aware that advertising consent for signage is required [Orange tab p37 para18] [Yellow tab p12 para18].

3.2. The Claimant relies on the signage as having formed a contract with the driver [Orange tab page 35 para4]. The contract formed between the Claimant and the driver, 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) and unclear due to inconsistent signage (see paragraph 2.1 above).

3.3. It is a criminal offence under Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 to display advertisements (which these signs are) without the relevant consent and therefore the Claimant is in breach of paragraph A3.1 of the CoP [Blue tab p58].

3.4. Claimant is not entitled to rely on an illegal or immoral act in order to profit from it pursuant to doctrine ex dolo malo non oritur actio. [Red tab p6 para8]

3.5. The rationale for the doctrine is set out in the early case of Holman v Johnson (1775) 1 Cowp 341 where Lord Mansfield said:
!!!8220;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.!!!8221;

3.6. 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.

3.7. The Court!!!8217;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.

3.8. 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!!!8217;s comments at paragraph 29 are of importance:
!!!8220;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!!!8221;.

3.9. 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 keeping the parking signs displayed which it asserts stated contractual terms, without first renewing the mandatory consent required by law. Thus a crime was committed. 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!!!8217;s signage that existed on the day of the parking cannot be undone, even by any subsequent grant renewal of advertisement consent.


ISSUE C: Was the contract between the Claimant and the Defendant breached at all?
4. The Defendant complied with the signage seen at the site and entered a contract by purchasing and displaying a valid ticket for the time parked in the car park.

4.1. The contract was not breached as the signage states !!!8220;A valid ticket must be purchased to park on this site and displayed clearly in your front windscreen!!!8221; [Orange tab p40]. It certainly does not mention !!!8220;display face upwards!!!8221; OR !!!8220;display showing expiry date and time!!!8221; OR something similar [Red tab p5 para5f]. Any breach (which, for avoidance of doubt, is denied) is de minimis [Yellow tab p10 para8].

4.2. The term !!!8220;displayed clearly!!!8221; is not transparent per Section 68 of the Consumer Rights Act 2015. Where contract terms have different meanings Section 69 of Consumer Rights Act 2015 provides a statutory form of the contra proferentum rule, such that uncertainty must be resolved in favour of the consumer [Red tab p5 para5e].

4.3. The main Claimant argument is the ticket is not displayed the right way up so couldn!!!8217;t check the validity of the ticket. The Defendant would counter this that the Claimant has had plenty of opportunity to see a copy of the valid ticket sent to them and quash the parking charge. Both at the appeal and !!!8216;Letter Before Claim!!!8217; stages [Green tab p19-20 and p26] [Yellow tab p11 para10 and 14].

4.4. Comments about the upside down ticket [Red tab p4 para5]:
4.4.1. It was a sunny but windy day and as the ticket is very flimsy and can easily be flipped particularly as it a big open car park. [Yellow tab p10 para6]
4.4.2. Has no sticky back to allow it to be fixed to the windscreen.
4.4.3. It has a serial number on the reverse side of the ticket [Orange tab p36 para14] [Yellow tab p10 para7].
4.4.4. A number plate is required to be entered in the ticket machine when payment is made so either a check of this, or the serial number on the back of the ticket, especially as the parking charge was sent through the post, could have been done prior to sending the parking charge out [Yellow tab p10 para7].

4.4.5. The Claimant avers that the ticket is flimsy and says having no sticky back is irrelevant [Orange tab p36 para11]. Council adjudicators (included here as in the Beavis case they were happy to draw similarities with Council parking cases) have often referred to the issue of !!!8220;fluttering flimsy tickets!!!8221; [Yellow tab p12 para20 and p13 para21]:

4.5. The Defendant relies on Jolly v Carmel (2000) in which the court 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 [Yellow tab p12 para19].

4.6. The Defendant relies on D3GF4P9D Private Parking Solutions London -v- Mrs A, before DJ Hammond. The DJ started by saying the whole case turned on the fact that a ticket had been purchased, and he wasn't going to delve into any other arguments. The ticket had been placed face down on the dashboard, so the PPC were entitled to issue the PCN. However, when they were shown the evidence, and proof of purchase of the ticket, they could not penalise the driver the Beavis case made it clear that a charge which would otherwise be a penalty, could be upheld if it acted as a deterrent against breach. That did not apply here, as there was nothing to deter.

!!!8195;
4.7. The Defendant relies on C8GF30W7 Link Parking v Mr H. 14/11/2016 Port Talbot
Mr H. The driver parked and purchased a valid ticket which he displayed on the dashboard. When he returned to his car he found a parking charge because at some time the ticket had turned upside down. The judge dismissed the claim. He ruled that it was the responsibility of the parking company to provide sticky backed tickets and that he had already thrown out 6-10 of these type of cases which Link Parking had brought.

4.8. On the day the Defendant had every intention to pay for parking, and did so, and complied with the terms of parking in the car park. Any breach (which, for avoidance of doubt, is denied) was de minimis !!!8220;too trivial or minor to merit consideration!!!8221; and the ticket flipping over was casus fortutitus !!!8221;chance occurrence, unavoidable accident!!!8221; [Yellow tab p12 para18].


REBUTTAL OF CLAIMANT EVIDENCE

5. The Claimant will no doubt assert that the principles in Beavis apply to this case. The factual matrix of the Beavis case was very different, in several important respects:
5.1. In Beavis the Defendant accepted that there was a contract formed by the signage, which was exceptionally clear and prominently displayed (a photograph of the sign in the Beavis case is at page [Green tab p33]). The case was therefore concerned only with the issue of damages and not liability for breach of contract. Neither admission has been made in this case.
5.2. The car park in Beavis was at a retail park, where a free period of parking was offered, and where there was a commercial justification in deterring visitors from overstaying so as to ensure a turnover of visitors to the commercial units. This justified a departure from the penalty rule. This is a standalone car park with no such commercial justification/interest where such a departure is NOT justified.
5.3. In Beavis the Claimant paid the landowner to operate the parking, and so the Claimant had to generate an income from doing so in order to cover its costs and make a profit. In this case, the Claimant is paid by the other party to the Parking Contract, so has no need to manage the parking in such a manner as to profit from PCNs.
5.4. The issue of illegality and Ex dolo malo non oritur actio was not an issue in Beavis, as it is in this case.

6. The Claimant!!!8217;s map of signage [Orange tab p41] submitted as evidence is now out of date as it shows no border between the Claimant!!!8217;s part and the Council-run part. (The Boundary is approximately from the pub vertically downwards).


SERVED BY THE DEFENDANT
26 March 2018

Fruitcake

6. The Claimant's map of signage [Orange tab p41] submitted as evidence is [STRIKE]now [/STRIKE]out of date as it shows no border between the Claimant's part and the Council-run part. (The Boundary is approximately from the pub vertically downwards).

Using the word now implies the map was previously in date, possibly when the proceedings started, but has only recently become out of date.

I would use a statement of fact. The map IS out of date. Nothing more needs to be said.


Obviously you need to check formatting on the real thing where things like !!!8195; have crept in.

Loadsofchildren123

I would argue that the party to the contract which purportedly granted rights to the PPC has no legal personality. It is therefore incapable of entering into a contract.


This is chapter and verse on the subject (don't quote it, it's here for you to understand the issue):

To have legal personality a person/organisation must be capable of holding legal rights and obligations (eg.entering into contracts) within the relevant legal system (in this case England and Wales). Legal personality is a prerequisite to having the legal capacity to create rights and obligations. A holder of legal personality is called a person. Persons are of two kinds: natural persons (also called physical persons) and juridical persons (also called juridic, juristic, artificial, legal or fictitious persons) - entities such as corporations, which are treated in law as if they are persons.


A juridical or artificial person has a legal name and has certain rights, protections, privileges, responsibilities, and liabilities in law, similar to those of a natural person. Juridical personality also allows one or more natural persons to act as a single entity (body corporate) for legal purposes. Artificial personality allows that entity to be considered under law separately from its individual members (for example in a company limited by shares, its shareholders). They may sue and be sued, enter contracts, incur debt, and own property. Entities with legal personality may also be subjected to certain legal obligations, such as the payment of taxes.


While human beings acquire legal personhood when they are born, juridical persons do so when they are incorporated in accordance with law. In your case this hasn't happened, so the entity has no legal personality and is not capable of entering into a contract.

Legal entities therefore include people, incorporated companies, co-operatives, sovereign states, the EU and so on. So, for instance, in England and Wales a limited company is a legal personality, but a partnership isn't (if you were to sue as a partnership you would sue in the name of the partners, or if you were to sue a partnership again you would sue the partners, rather than the partnership itself).

[In case they try to claim it was a "trading as" name:] In the UK businesses that trade under names other than those of the owner or a corporate entity (the "trading as" name) must display the name of owner and an address at which documents may be served, or the name and registered number of the corporate body and its registered address. The requirements apply to sole traders and partnerships, but there are special provisions for large partnerships where listing all partners would be onerous.

claxtome

I would argue that the party to the contract which purportedly granted rights to the PPC has no legal personality. It is therefore incapable of entering into a contract.

I assume I add this as re-worded 1.1 as follows (change in red):

1.1. The party 'Total CarPark Solutions', in the Parking Contract, is not the landowner or another entity authorised by the landowner so has no legal personality and is incapable of entering into a contract. 'Total CarPark Solutions', or similar name, is not even a recognised company according to Companies House [Orange tab p39] .

Loadsofchildren123

yes, and take my note with you to court so you can refer to it: but these are very general legal principles with the judge will know.

Loadsofchildren123

I got a lot of that info from Wiki btw

claxtome

Skeleton Submitted to court->
https://db.tt/gzO0EoPTbl

IN THE XX COUNTY COURT Claim Number: XXXXX

ES Parking Enforcement Ltd
(Claimant)
-AND-

XXXXX
(Defendant)

___________________________________________________________________________

DEFENDANT'S SKELETON ARGUMENT
FOR THE HEARING XX.03.18
___________________________________________________________________________

Terms used in this document:

Beavis Case: Cavendish Square Holdings BV v Talal El Makdessi; ParkingEye Limited v Beavis [2015] UKSC 67

BPA: British Parking Association

CoP: Code of Practice (issued by both BPA and IPC)

ESPEL: ES Parking Enforcement Ltd issued the NtD and NtK in this case

IPC: International Parking Community (membership of either BPA or IPC. Code of Practice is compulsory for any parking company wanting to access keeper data from the DVLA). The Claimant is a member of IPC

The Land: Land near XXXXX Street, YYYYYY [Green tab p18]

NtD: Notice to Driver

NtK: Notice to Keeper

The Parking Contract: The agreement dated 12.02.15 between Total CarPark Solutions and ESPEL exhibited to the Claiman's Statement [Orange tab p39].

PCN: Parking Charge Notice (the same as the NtD, a ticket stuck to the windscreen of a vehicle informing the driver of a charge)

References in [] are to tab, page and paragraph numbers of the Defendant's bundle:

Summary of Defendant's position
The suggested approach to this matter is for the court to decide in turn upon the following issues:
ISSUE A: Has the Claimant Locus Standi to offer a contract?
ISSUE B: Is the Signage permitted to be displayed?
ISSUE C: Was there a contract between the Claimant and did the Defendant breach it at all?
If the court decides in favour of the Defendant in relation to issue A, there is no need for it to consider issues B/C, or if it decides in his favour in relation to issue B then again there is no need for the court to go on to consider issue C.

ISSUE A: Has the Claimant Locus Standi to offer a contract?
1. The Claimant has no Locus Standi to bring this claim [Red tab p6 para7] because:

1.1. The party 'Total CarPark Solutions', in the Parking Contract, is not the landowner or another entity authorised by the landowner so has no legal personality and is incapable of entering into a contract. 'Total CarPark Solutions', or similar name, is not even a recognised company according to Companies House [Orange tab p39].

1.2. Part B Paragraph 1.1 of the IPC CoP specifically provides that the Claimant must have written authorisation of the landowner [Blue tab p60]. Compliance with the CoP is mandatory. Implicit in this is that Claimant would have no rights under the Parking Contract if they were not granted by the landowner.

1.3. The Land is divided into 4 title numbers; 3 Freehold and 1 Leasehold; none of which mention a landowner or leaseholder similar to'Total CarPark Solutions' [p88].

1.4. 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].

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

1.6. 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 Limitede 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.

1.7. The Defendant also relies on:
ParkingEye Ltd v Gosnold (parking contract with non-landowner not valid)
ParkingEye Ltd v Rickard (Claimant did not produce evidence of a contract with the landowner).

1.8. The Parking Contract evidenced by the Claimant is incomplete as Clause 8 mentions "..terms and conditions overleaf" and now out of date as was valid for 1 year and signed on 12.02.15. [Orange tab p39].

ISSUE B: Is the Signage permitted to be displayed?
2. The Claimant's advertising consent for signage has expired:

2.1. The Defendant's evidence shows it expired on 24.02.17 long before the day in question [Green tab p28-31]. The Claimant's statement refutes this but has not provided any evidence to back this. This proves the Claimant is aware that advertising consent for signage is required [Orange tab p37 para18] [Yellow tab p12 para18].

2.2. The Claimant relies on the signage as having formed a contract with the driver [Orange tab page 35 para4]. The contract formed between the Claimant and the driver, 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) and unclear due to inconsistent signage (see paragraph 2.1 above).

2.3. It is a criminal offence under Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 to display advertisements (which these signs are) without the relevant consent and therefore the Claimant is in breach of paragraph A3.1 of the CoP [Blue tab p58].

2.4. Claimant is not entitled to rely on an illegal or immoral act in order to profit from it pursuant to doctrine ex dolo malo non oritur actio. [Red tab p6 para8]

2.5. The rationale for the doctrine is set out in the early case of Holman v Johnson (1775) 1 Cowp 341 where 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."

2.6. 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.

2.7. 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.

2.8. 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".

2.9. 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 keeping the parking signs displayed which it asserts stated contractual terms, without first renewing the mandatory consent required by law. Thus a crime was committed. 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 renewal of advertisement consent.


ISSUE C: Was there a contract between the Claimant and did the Defendant breach it at all?
3. The Defendan's primary position is that there was no contract formed because the signage on the site was inconsistent and therefore the terms being offered and the offeror's identity were unclear and incapable of being accepted [Orange tab p40] [p87]:

3.1. The Defendant calls into question the veracity of the Claimant evidence and the truthfulness of their witness statement.

3.2. Raises the questions:"What is the penalty charge £75 or £100?" and "Will cars be clamped or not?" (Where clamping is not allowed now).

3.3. The Claimant should be aware of signage issues as is closely monitored to conform to the IPC CoP [Blue tab p59 A4] so will need to keep meticulous records.

4. In any event, the Defendant complied with the signage seen at the site and complied with the terms he believed were offered by purchasing and displaying a valid ticket for the time parked in the car park.

4.1. The contract was not breached as the signage states "A valid ticket must be purchased to park on this site and displayed clearly in your front windscreen" [Orange tab p40]. It certainly does not mention"display face upwards" OR "display showing expiry date and time" OR something similar [Red tab p5 para5f].

4.2. If any breach did take place, (which, for avoidance of doubt, is denied) was de minimis [Yellow tab p10 para8].

4.3. The term "displayed clearly" is not transparent per Section 68 of the Consumer Rights Act 2015. Where contract terms have different meanings Section 69 of Consumer Rights Act 2015 provides a statutory form of the contra proferentum rule, such that uncertainty must be resolved in favour of the consumer [Red tab p5 para5e].

4.4. The Claimant's main argument is the ticket was not displayed the right way up so it couldn't check the validity of the ticket. However, the ticket had a serial number on its rear side, and the Claimant has had plenty of opportunity to see a copy of the valid ticket and quash the parking charge. Both at the appeal and 'Letter Before Claim' stages [Green tab p19-20 and p26] [Yellow tab p11 para10 and 14].

4.5. The issue known as "fluttering tickets"; is common and well known. A flimsy ticket, which has no ability to be stuck to the dashboard or windscreen of a car, can easily flip over when the door of the car is closed. Comments about the upside down ticket [Red tab p4 para5]:
4.5.1. It was a sunny but windy day; the ticket was very flimsy and could easily be flipped particularly as it a big open car park with no shelter from the elements. [Yellow tab p10 para6]
4.5.2. Has no sticky back to allow it to be fixed to the windscreen.
4.5.3. It has a serial number on the reverse side of the ticket [Orange tab p36 para14] [Yellow tab p10 para7].
4.5.4. A number plate is required to be entered in the ticket machine when payment is made so either a check of this, or the serial number on the back of the ticket, especially as the parking charge was sent through the post, could have been done prior to sending the parking charge out [Yellow tab p10 para7].
4.5.5. The Claimant avers that the ticket is flimsy and says having no sticky back is irrelevant [Orange tab p36 para11]. Council adjudicators (included here as in the Beavis case they were happy to draw similarities with Council parking cases) have often referred to the issue of "fluttering flimsy tickets" and accept that such tickets are essentially unfit for purpose and allow appeals based on validly purchased tickets which flip over because they cannot be fixed in place inside the vehicle [Yellow tab p12 para20 and p13 para21]:

4.6. The Defendant relies on Jolly v Carmel (2000) in which the court 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 [Yellow tab p12 para19].

4.7. The Defendant relies on D3GF4P9D Private Parking Solutions London -v- Mrs A, before DJ Hammond. The DJ started by saying the whole case turned on the fact that a ticket had been purchased, and he wasn't going to delve into any other arguments. The ticket had been placed face down on the dashboard, so the PPC were entitled to issue the PCN. However, when they were shown the evidence, and proof of purchase of the ticket, they could not penalise the driver the Beavis case made it clear that a charge which would otherwise be a penalty, could be upheld if it acted as a deterrent against breach. That did not apply here, as there was nothing to deter.

4.8. The Defendant relies on C8GF30W7 Link Parking v Mr H. 14/11/2016 Port Talbot
Mr H. The driver parked and purchased a valid ticket which he displayed on the dashboard. When he returned to his car he found a parking charge because at some time the ticket had turned upside down. The judge dismissed the claim. He ruled that it was the responsibility of the parking company to provide sticky backed tickets and that he had already thrown out 6-10 of these type of cases which Link Parking had brought.

4.9. On the day the Defendant had every intention to pay for parking, and did so, and complied with the terms of parking in the car park. Any breach (which, for avoidance of doubt, is denied) was de minimis "too trivial or minor to merit consideration" and the ticket flipping over was casus fortutitus "chance occurrence, unavoidable accident" [Yellow tab p12 para18].


REBUTTAL OF CLAIMANT EVIDENCE

5. The Claimant will no doubt assert that the principles in Beavis apply to this case. The factual matrix of the Beavis case was very different, in several important respects:

5.1. In Beavis the Defendant accepted that there was a contract formed by the signage, which was exceptionally clear and prominently displayed (a photograph of the sign in the Beavis case is at page [Green tab p33]). The case was therefore concerned only with the issue of damages and not liability for breach of contract. Neither admission has been made in this case.

5.2. The car park in Beavis was at a retail park, where a free period of parking was offered, and where there was a commercial justification in deterring visitors from overstaying so as to ensure a turnover of visitors to the commercial units. This justified a departure from the penalty rule. This is a standalone pay and display car park with no such commercial justification/interest where such a departure is NOT justified.

5.3. In Beavis the Claimant paid the landowner to operate the parking, and so the Claimant had to generate an income from doing so in order to cover its costs and make a profit. In this case, the Claimant is paid by the other party to the Parking Contract, so has no need to manage the parking in such a manner as to profit from PCNs.

5.4. The issue of illegality and Ex dolo malo non oritur actio was not an issue in Beavis, as it is in this case.

6. The Claimant's map of signage [Orange tab p41] submitted as evidence is out of date as it shows no border between the Claimant's part and the Council-run part. (The Boundary is approximately from the pub vertically downwards).

Signed: Date:


SERVED BY THE DEFENDANT
26 March 2018

Coupon-mad

A very good example of a SA relating to a 'fluttering ticket' allegation. Good on you, claxtome.

claxtome

Decided not to contest RoA and rather put my energy/time remaining on preparing for the day.

Going to send to Claimant a letter requesting to cross examine the witness.
The witness is a senior person in ES.

Questions for witness I have come up with are:

1. Why is there inconsistent signage in the car park?
2. How many parking charge notices have been issued for the same offence as mine at this car park?
3. Why could you not have checked that I paid using my car registration (entered in machine)/ serial number of ticket to a payment from me for parking?
4. Why do you continue the case when you do not contest I paid to park?

Anyone come up with any other suggestions?

bargepole

claxtome wrote: »

Decided not to contest RoA and rather put my energy/time remaining on preparing for the day.

Going to send to Claimant a letter requesting to cross examine the witness.
The witness is a senior person in ES.

Questions for witness I have come up with are:

1. Why is there inconsistent signage in the car park?
2. How many parking charge notices have been issued for the same offence as mine at this car park?
3. Why could you not have checked that I paid using my car registration (entered in machine)/ serial number of ticket to a payment from me for parking?
4. Why do you continue the case when you do not contest I paid to park?

Anyone come up with any other suggestions?

A wise decision not to contest RoA, this can be a double-edged sword, possibly resulting in an adjournment, or in the Judge allowing their rep to speak anyway, and concluding that you don't have much of a defence if this is the best you can do.

I would get rid of q2, whether they have issued 10, 100 or 1000 similar PCNs has no relevance to your case.

Add the following: Did you write the WS you have signed, or is it just a standard template from Gladstones, similar to hundreds of others which have been seen on various online consumer forums?