fluttering ticket going to court

claxtome

Any DPA breach is a separate matter and has no bearing on this case

.

Lamilad - LOC posted this in my sister thread when I was suggested to put in defence->
You should also reserve your position specifically in your defence about a breach of the DPA (my PPC didn't like that at all, they withdrew on condition I didn't pursue any counterclaim even though I hadn't actually made one).

claxtome

Lamilad thanks for all your helpful posts. On the topic of locus standi ->

I did originally have info about the requests of information I have made in the 'prelim' section but took it out.
Is the following better?

Locus standi
7. [STRIKE]The Claimant has no standing to bring this claim, or in the alternative the doctrine of privity applies and the Claimant is not privy to a contract that is between the landowner and the defendant. The proper Claimant is the landowner.[/STRIKE]So far the Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder and therefore would have no locus standi to bring this case, per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd.

[STRIKE]7.1 The Defendant has reasonable belief that a statutory assignment has not taken place, therefore per Viscount Haldane’s judgement in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, the Claimant may only sue on the contract as an agent if consideration has been given by the landowner personally or through the Claimant acting as agent; no such consideration flows as the Claimant does not receive payment from the landowner to manage the site in the landowner’s commercial interest, does not receive any proceeds from the sale of tickets, and does not offer parking as consideration for the Defendant’s payment for a licence to park. The Claimant’s business model is solely driven by the recovery of penalty fees. [/STRIKE]

[STRIKE] 7.2 Strict proof is required that there is an assignment of contractual rights leading from the landowner to the Claimant. The Defendant has reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case, per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd.[/STRIKE]

[STRIKE]7.3 As per Trendtex Trading Corporation v Credit Suisse [1982] AC 679, a mere right to sue for damages is not assignable unless the assignee has a genuine commercial interest in taking the assignment; and Lords Neuberger and Sumption’s judgement (at [28]).[/STRIKE]

7.1 [STRIKE]7.4[/STRIKE] Parking Eye Ltd v Beavis [2015] UKSC 67 showed that the Claimant does not have a wider legitimate interest extending beyond the prospect of damages, as their interest is only limited to the recovery of compensation for the alleged breach of contract, and no commercial interest has engaged as to the control of parking as the Defendant had paid for a licence to park.

claxtome

The Defendant admits that a contract was entered into, but denies that the contract was breached or that the Claimant has suffered any loss; alternatively if the Defendant did breach its terms, such breach was de minimis and caused the Claimant no loss.

Was reworded in a previous incarnation of my defence to:

6. Whilst there was a limited contract which was concluded at the pay and display machine, the only sums of money in large lettering at the ‘point of sale’ were the parking tariffs, and the Claimant is put to strict proof of the notices on/at the pay and display machine.

How about->
6. Whilst there was a limited contract which was concluded at the pay and display machine, the only sums of money in large lettering at the ‘point of sale’ were the parking tariffs, and the Claimant is put to strict proof of the notices on/at the pay and display machine as to what is shown. If the Defendant did breach its terms, such breach was de minimis and caused the Claimant no loss.

Lamilad

How about->
6. Whilst there was a limited contract which was concluded at the pay and display machine, the only sums of money in large lettering at the ‘point of sale’ were the parking tariffs, and the Claimant is put to strict proof of the notices on/at the pay and display machine as to what is shown. If the Defendant did breach its terms, such breach was de minimis and caused the Claimant no loss.

It's wishy-washy. Regardless of how you word it, the point doesn't add anything to your defence.

We're trying to make your defence more concise so anything that isn't needed can be removed

Lamilad

claxtome wrote: »

.

Lamilad - LOC posted this in my sister thread when I was suggested to put in defence->
You should also reserve your position specifically in your defence about a breach of the DPA (my PPC didn't like that at all, they withdrew on condition I didn't pursue any counterclaim even though I hadn't actually made one).

LoC is legally qualified and I would always defer to her expert knowledge.

However...

I could be missing something but I do no see how saying anything about a potential DPA breach assists your defence or affects any future position you may be in to pursue a claim.

As I have said your defence is already too long so I certainly wouldn't be adding anything that's not relevant.

Johnersh is also legally qualified and he said this to another OP earlier... He's referring to a skeleton argument but I think the point he's making has application to your defence.

Not a bad first stab at signposting your case.

The skelly needs to be short and should not have appendices - all the relevant documents should be in the trial bundle.

16, 17, 18 can all be thinned right out. They are prolix. No lawyer needs an exposition of the late Lord Denning's rule as to onerous terms - it is enough to merely mention it. Similarly you will need to discuss Beavis but shouldn't need a full page to do so. You will need to simply say it is distinguishable because the site and circumstances are different. You can reference the paragraph of the judgment that assists - no need to set it all out.

Less is more - you need to nail the points clearly so you can talk the court through them if needed.

Each DJ will have a different approach. Many will seize control by asking for specific points to be addressed by claimant/defendant. It avoids waffle and can make things fairer if one party is less than comfortable or isn't quite on topic.

claxtome

Thanks once again for all your help in rewording my defence.
(Lamilad thank you for spending a long time looking at it)
Below incorporates all suggested edits so far as thought it might help:

Defence Statement

Preliminary Matters
1. The Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

1.1 The Particulars of Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached and fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence; are not clear and concise as is required by CPR Part 16.4 1(a).

1.2 The Claimant and their solicitor are known to be a serial litigants and issuer of speculative claims, using template particulars of claim which arise from an automated template, with no due diligence. Research indicated they are the subject of an active investigation by the Solicitors Regulation Authority.

1.3 In C3GF84Y2 (Mason, Plymouth County Court) [2016] the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where a claim was struck out without a hearing, due to Gladstones' template particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

1.4 On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failed to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the claim was struck out.

2. The Defendant appealed the postal Parking Charge Notice on the XX/XX/XXXX explaining what had happened and included a copy of the ticket displayed on the day providing the Claimant with clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and condition (“T&C”) - as far as they were understood.

2.1 This was an opportunity for the Claimant to act reasonably and cancel the charge.

2.2 Not only was the charge was not cancelled but the appeal was not acknowledged by the Claimant and no response was received.

2.3 The above constitutes a direct breach of Practice Direction pre-action conduct and protocols; specifically - paragraph 3 (Objectives), and 8 (Settlement and ADR). As such the court's attention is drawn to paragraphs 13 - 16.

2.4 The above is also a direct breach of the International Parking Community ("IPC") Code of Practice ("CoP"), Part B, Section 6. The CoP is effectively regulation for the private parking industry, as found by the supreme court judges in the Beavis Case.

3. On the basis of the above, the Defendant requests the court strike out the claim for want of a cause of action and disregard of pre-court protocol.

3.1 Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
a) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
b) A copy of any contract it is alleged was in place (e.g. copies of signage)
c) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
d) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
e) If Interest charges are being claimed, the basis on which this is being claimed

3.2 Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

Background
4. I am XXX the Defendant and was the authorised registered keeper and the driver in question at the time of the alleged incident.

The Defendant denies liability for the entirety of the claim for the following reasons:

5. A ticket was paid for and displayed so all details could be seen, and was in place the right way up when the car was locked and left parked. The Defendant has no knowledge of the point at which the ticket flipped over or why, but made reasonable endeavours, and complied by conduct.

5.1 The Defendant cannot be responsible for the possibility that:
a) A gust of wind may have later flipped the flimsy paper over, despite the windows & doors being locked.
b) The employee of the Claimant may have caused the ticket to flip over, perhaps accidentally when leaning across the car or pushing between vehicles. No suggestion of foul play is intended but this is a known predatory tactic among this industry.
c) A passer-by may have leaned on the car, when squeezing between the small bays to get to their own vehicle.

5.2 None of the above scenarios are within a driver's control (The driver was by that time, absent from the location) and it is evident that someone else – or a factor outside anyone's control – was to blame. This appears to have been a case of casus fortuitus "chance occurrence, unavoidable accident", which is a doctrine that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties renders the contract frustrated.

5.3 Notwithstanding the above, the flimsiness of the ticket certainly played its part, and that is within the control of this industry, who are well aware of the problem, which even have a name attributed: ''fluttering tickets''. Because they profit from drivers' misfortune caused by their own tickets' inability to withstand British weather, it is averred that this Claimant wilfully decided not to address this issue (e.g. by adding sticky backing to the ticket).

5.4 The Court is invited to consider the fairness of the position in this case, giving due consideration to the flimsiness of the piece of paper provided, which appears to cause significant imbalance in the rights of a consumer, to their detriment.
''A term or notice is deemed to be ‘unfair’ if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer. This is to be determined by taking into account the nature of the subject matter of the contract, and by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends [...] ''An unfair term of a consumer contract is not binding on the consumer.''(s.62 Consumer Rights Act).

5.5 The term, ‘A valid ticket must be purchased to park on this site and be displayed clearly in your front windscreen’ in particular the meaning of ‘displayed clearly’ is not transparent per Section 68 of the CRA 2015. Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt.

5.6 A valid ticket was displayed in the front windscreen of the Defendant’s vehicle. If the Claimant wanted to impose a different term to say display the ticket face-up then they should have drafted clear terms to that effect.

5.7 It is not disputed that the ticket gave the Defendant a licence to park for the entire day. The ticket was displayed on the dashboard at all times. This will be demonstrated by the Claimant’s own evidence.

5.8 The Claimant’s own evidence will also show the back of the ticket has a serial number. The Claimant is held to account as to why it can’t trace the details of pay and display ticket from this.

Limited contract
6. The signage on this site is inadequate to form a contract to pay £100 or any sum at all. It is barely legible, making it difficult to read and it is not believed that such terms were proclaimed with the tariffs at the machine. Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which ES is a member), clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.”

Locus standi
7. The Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder and therefore would have no locus standi to bring this case per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd.

7.1 Parking Eye Ltd v Beavis [2015] UKSC 67 showed that the Claimant does not have a wider legitimate interest extending beyond the prospect of damages, as their interest is only limited to the recovery of compensation for the alleged breach of contract, and no commercial interest has engaged as to the control of parking as the Defendant had paid for a licence to park.

No advertising consent for signage
8. [STRIKE]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.[/STRIKE] In this matter, the Claimant does not have advertisement consent in relation to its parking signage on the land in question (which are classed as “advertisements” under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended). This is a criminal offence under Regulation 30 of those Regulations. Accordingly, as a matter of public policy the principle ex dolo malo non oritur action should apply – namely, the Claimant should not be allowed to found a cause of action on an immoral or an illegal act (in this case the unlawful signage). The rationale for this is set out in the case of Holman v Johnson (1775) 1 Cowp 341 and was reaffirmed in RTA (Business Consultants) Ltd v Bracewell [2015] EWHC 630 (QB) (12 March 2015). The Defendant also relies on Andre Agassi v S Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507.

8.1 In addition to the criminal offence committed by the Claimant, it is in breach of various statutory and regulatory provisions set out in the Consumer Protection from Unfair Trading Regulations 2008 (Regulation 3 – a breach of which is an offence under Regulation 5), the Consumer Rights Act 2015 (Sections 62 and 68 and Schedule 2) and the Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013 (Regulation 13). [STRIKE]Again, the court should not lend its aid to the Claimant in founding a claim based on its unlawful and/or immoral conduct.[/STRIKE]

[STRIKE]8.2 Furthermore, it must be contrary to public policy for a court to enforce a contract whereby a party will profit from its criminal conduct and the Defendant will rely on ParkingEye v Somerfield Stores [2012] EWCA Civ 1338.[/STRIKE]

[STRIKE]Trespass
9. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. In the event that a trespass claim is brought by the Claimant, the Defendant parked on land where parking was invited and paid for full authority to park, and did not overstay. Trespass cannot therefore apply as per the Supreme Court in the case of Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case),

9.1 Furthermore, the Defendant has reasonable belief that the Claimant does not have a contractual or proprietary right to occupy or possess the car park per Hill v Tupper [1863] 2 H & C 121; the landowner has not assigned rights to enable the Claimant to pursue a case under the tort of trespass. [/STRIKE]

Claimant is seeking a penalty and inflated costs
10. The Claimant seeks £160 which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown he did purchase a valid ticket and the Claimant has suffered no loss, and because any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.

10.1 £60 of the £160 ‘parking charge’ (for which liability is denied) the Claimant has untruthfully presented as contractual charges, which amounts to double charging, which the PoFA 2012 Schedule 4 specifically disallows.

10.2 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.

10.3 There is no possible commercial justification for such a trivial error for the Claimant. The Beavis v ParkingEye [2015] Judges at the Court of Appeal stated there was a commercial justification as it was free car park and needed to prevent overstays of the free 2 hour stay. Whereas in this case the car park is a Pay and Display car park where revenue is gained as people need to pay to park there for an agreed period of time.

10.4 The Claimant has claimed a £50 legal representative’s cost on the claim form, despite being well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. The Defendant also has the reasonable belief that the charges have not been invoiced and/or paid and that due to the sparse particulars the £50 claimed for filing the claim has not been incurred either. This appears to be an attempt at double recovery as a way to inflate the value of the claim. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.

10.5 The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; “JUDGMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS”. These were presumably the £25 filing fee and £25 hearing fee. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

10.6 I deny the Claimant is entitled to any interest whatsoever

11. The Defendant invites the court to strike out the claim for the above grounds.

I believe the facts stated in this defence are true.

As usual any comments/suggestions are welcome please

claxtome

Do people still think it is too long?

If so can you suggest the area's I need to try and condense please

Coupon-mad

The only thing I would not bother with is trespass, because we know that's not the basis of the claim (never is).

claxtome

Thanks for advice Coupon-mad I have re-edited the last version of defence to remove 9.

Lamilad

Looks good. I'm going to suggest one last edit to these paras which are repetitive. Then I would say, you're good to go.

No advertising consent for signage
8. [STRIKE]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.[/STRIKE] In this matter, the Claimant does not have advertisement consent in relation to its parking signage on the land in question (which are classed as “advertisements” under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended). This is a criminal offence under Regulation 30 of those Regulations. Accordingly, as a matter of public policy the principle ex dolo malo non oritur action should apply – namely, the Claimant should not be allowed to found a cause of action on an immoral or an illegal act (in this case the unlawful signage). The rationale for this is set out in the case of Holman v Johnson (1775) 1 Cowp 341 and was reaffirmed in RTA (Business Consultants) Ltd v Bracewell [2015] EWHC 630 (QB) (12 March 2015). The Defendant also relies on Andre Agassi v S Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507.

8.1 In addition to the criminal offence committed by the Claimant, it is in breach of various statutory and regulatory provisions set out in the Consumer Protection from Unfair Trading Regulations 2008 (Regulation 3 – a breach of which is an offence under Regulation 5), the Consumer Rights Act 2015 (Sections 62 and 68 and Schedule 2) and the Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013 (Regulation 13). [STRIKE]Again, the court should not lend its aid to the Claimant in founding a claim based on its unlawful and/or immoral conduct.[/STRIKE]

[STRIKE]8.2 Furthermore, it must be contrary to public policy for a court to enforce a contract whereby a party will profit from its criminal conduct and the Defendant will rely on ParkingEye v Somerfield Stores [2012] EWCA Civ 1338.[/STRIKE]