fluttering ticket going to court

claxtome

Thanks for the advice Lamilad. I have re-edited the last version of defence with your suggested edits.

Loadsofchildren123

On the DPA issue - in my own case I ran out of steam with all the research and lost the will to live when it came to looking into the DPA. I would never have pleaded it properly unless I thought it was a winning point. So I simply put in a throw away line which simply said the D believed they'd breached his rights and reserved his position. It was certainly not a counterclaim.


When it came to withdrawing the claim, the PPC (Millennium) made a big song and dance about the settlement including the D agreeing not to pursue "the counterclaim" (even though there wasn't one). So it was clearly something that bothered them. As a throw away one liner I'd leave it there, but it doesn't amount to a claim, it's just something that makes them aware that you know it's an issue and you may claim later. On its own it isn't something that would make them back down and unless it's pleaded properly the court will ignore it. Leaving it out certainly doesn't preclude you from making a claim later.

claxtome

Thank you all for your help.
I will be posting my defence statement, below, on Tue unless someone pipes up with any suggested corrections/suggestions.

Background to final version from last version->
LoadsofChildren123 has helped me to reword/improve the defence (fairly slight alterations I agreed with).
Main changes are removal of 10.2 'The Driver did not enter into any agreement on the charge' (as can't fully decide if that is true)
Main addition is new sections 1.5 and 9.1 and DPA breach (throw away)
Otherwise I removed Trespass section as was suggested by Coupon-mad


Defence Statement

Preliminary Matters
1. The Claimant has not complied with its obligations set out in the Practice Direction – Pre-Action Conduct and Protocols. This prevents the Defendant understanding the claim and filing a full defence, because a parking charge can be for trespass or breach of contract, both of which are treated differently in law and require a different defence. If a claim in contract, the Claimant has not explained what it claims the terms of that contract were or how it was entered into. No copy of the alleged contract has been provided to the Defendant.

1.1 The Particulars of Claim breach the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached and breach 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 explanation; the Claimant thus fails to establish a cause of action which would enable the Defendant to prepare a specific defence; they 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, 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.

1.5 There are other similar examples which could be produced.

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), 6(a) and (c) (Steps before issuing a claim) and 8 (Settlement and ADR). As such the court's attention is drawn to the sanctions set out in paragraphs 13 - 16.

2.4 The Claimant’s conduct 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 in the Beavis Case.

3. 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 court makes an order requiring the Claimant to file compliant Particulars, to include at least the following;
a) Whether the claim is 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 entered into and how (e.g. copies of signage)
c) Whether the Claimant is acting as Agent or Principal, together with documents they rely on in having standing to bring this claim
d) If charges over and above the initial charge are being claimed, the basis on which this is being claimed and calculated
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.The Defendant is 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. If the claim is brought for breach of contract, the Defendant paid and displayed a ticket 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 all 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.
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 Defendant 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 the Claimant, who must be well aware of the problem, which has become known as ''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 failed to address this issue (e.g. by adding sticky backing to the ticket, allowing it to be fixed in place).

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, and the Defendant relies on Section 62 of the 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 any uncertainty must be resolved in favour of the consumer.

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 require the ticket to be displayed in a prescribed manner (eg face up), then the terms should have stated this clearly and unequivocally.

5.7 The Claimant does not dispute that the Defendant purchased a ticket, that it gave him a licence to park for the entire day and that it was displayed on the dashboard at all times.

5.8 The Claimant has already demonstrated to the Defendant that the rear of the ticket had on it a serial number. The purpose of the serial number must have been so that the Claimant could trace the details of pay and display ticket and must indicate that the Claimant accepted the possibility that the ticket could flip over, unknown to the driver.

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 the Claimant is a member), clearly obliges the Claimant to display legible signs in appropriate locations.

Locus standi
7. The Claimant has failed to establish its 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. 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. 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 and pursuant to the doctrine, the Claimant should not be allowed to found a cause of action on 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 and ParkingEye v Somerfield Stores [2012] EWCA Civ 1338.

8.1 In addition, the Claimant 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). Again, the court should not lend its aid to the Claimant in founding a claim based on its unlawful and/or immoral conduct.

Claimant is seeking a penalty and inflated costs
9. 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.

9.1 The Claimant is under a duty to mitigate its loss. It failed to do so by ignoring the serial number on the rear of the ticket which would have enabled it to establish that the Defendant had paid for a full day’s parking.

9.2 £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. Any term allowing for the Claimant to pursue such additional charges must be void for uncertainty. In any event, such charges must be covered by the addition of the discounted element of the charge after a driver has failed to pay within 14 days (£40).

9.3 There is no possible commercial justification for the Claimant to found an action based on such a trivial error. The Beavis v ParkingEye [2015] Judges at the Court of Appeal stated that in that case there was a commercial justification as it was free car park and the Claimant 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 earned from the purchase of tickets for an agreed period of time.

9.4 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.

9.5 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”.. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

9.6 The Defendant denies that the Claimant is entitled to any interest whatsoever

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

[STRIKE]Data Protection Act breach
For the reasons set out already, the parking charge which is the subject of these proceedings is invalid. The Claimant therefore had no right to request the keeper’s details from the DVLA and to use them, and has breached the Defendant’s rights under the Data Protection Act by doing both. Vidal-Hall v Google Inc [2014] EWHC 13 (QB) is authority that misuse of personal data is a tort. Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 is authority that a reasonable sum of compensation would be £750. The Defendant reserves his rights in respect of these matters.[/STRIKE]

<statement of truth>

claxtome

I am little uneasy with section 5.8 and 10.1 and will check over the ticket tonight to see exactly what is on the front and back of the ticket and will post what I see.

claxtome

Ok front of ticket has a 7 digit number starting 066.
Back says "to reorder quote xxx-yyyyyy"

Where x and y are digits.
I haven't got another ticket so can't check the back against another...

What do people think - can i still run with 5.8 and 10.1 ?

Lamilad

What do people think - can i still run with 5.8 and 10.1 ?

Yes 5.8 is fine. The number might be nothing to do with details on the ticket but that's for them to disprove. If they don't then that helps your defence. If they do... so what! You have much bigger points to rely on and plenty of them.

I can't see a 10.1 but if you mean the para about DPA then I stand by my previous comment. It has no relevance whatsoever to your defence and, I would remove it. It looks especially weird plonked at the end.

If it was my defence, I wouldn't want to distract any attention away from the strong points attacking the claim

claxtome

Ok thank you Lamilad wasn't sure.
You are right it is up to them to disprove.

Btw

I can't see a 10.1

Sorry 10.1 should have been 9.1 as removed section 9 previously.

which is:

9.1 The Claimant is under a duty to mitigate its loss. It failed to do so by ignoring the serial number on the rear of the ticket which would have enabled it to establish that the Defendant had paid for a full day’s parking

Lamilad

9.1 is fine. Same as what I said about 5.8

claxtome

if you mean the para about DPA then I stand by my previous comment. It has no relevance whatsoever to your defence and, I would remove it. It looks especially weird plonked at the end.

If it was my defence, I wouldn't want to distract any attention away from the strong points attacking the claim

Ok Lamilad have had time to reflect and have decided to take it out.

Sorry to have wasted some people's time on here discussing it.
Just wasn't sure and wanted my best defence.

claxtome

Thanks for all the help so far.

Posted Defence today - well within the 33 day deadline.
Watch this space for the next step...