Sip/gladstones draft defence -urgent help required

Anita86

Well done Madsue, I'm thrilled for you. Is there a thread or post surrounding your case you can point me toward?

I've updated my draft, still a work in progress as there are further points I'd like and need to add, but haven't really got my head around them enough yet to do so. I dont mind paraphrases other peoples defences, but only if I feel I actually get it. I'm worried I'll be asked something in court and clearly sound like I have no clue what I'm talking about/poor knowledge of applicable case law. I'd much rather leave that to Gladstones

Thanks to everyone who's chipped in so far. I will make sure to keep everyone updated throughout. Ooops, almost signed off without including the defence.
Here goes:


I am XXXXXXX Defendant in this matter. It is admitted only that the Defendant was the authorised registered keeper of vehicle XXXXXXX at the time of the alleged incident.

I deny liability for the entirety of the claim, and all allegations implied in pre-action correspondence, based on the following.

1. A valid pay and display ticket was purchased and displayed clearly in the windscreen at 14:53 on the day in question, allowing for 4 hours of parking.
The Defendant has no knowledge of the point at which the ticket flipped over or why, but made reasonable endeavours and complied by conduct.
1.1 The Defendant is not responsible for the following or further unknown possibilities that resulted in the ticket flipping over:
- a gust of wind causing the flimsy paper to turn over.
- an employee of the Claimant accidentally causing the ticket to flip over, perhaps when leaning across the car or squeezing between vehicles.
-a passer-by leaning on the car when attempting to pass between vehicles or gain entry to their own vehicle. The terrain on site is extremely precarious with several pot holes, steep slopes and generally uneven surfaces in poor states of repair.
1.2 As none of the aforementioned possibilities were within the Defendants control, this event appears to have been a case of ’casus fortuitus". A “chance occurrence”, or “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. (REFERENCE or QUOTE?)
1.3. In addition, the Defendant would like to draw the courts attention to a common problem within the parking industry, that of the ‘fluttering ticket’ FLUTTERING TICKET CASES/QUOTES - What I've read so far in some other posts was quite wordy and I just got lost, so I'll add something in my own words here.

2. The Claimant has suffered no loss and has evidence of payment made for a valid ticket.
The Claimant was provided with evidence of a valid ticket by way of a copy sent by the Defendant on 19/04/2017 as part of the 1st stage appeal. The Claimant themselves confirmed a ticket was purchased and displayed as evidenced in the Claimant’s own photographs.
Whilst the angle of the photograph obscures part of the ticket, the Defendant contests that the ticket’s serial number was still clearly visible and on display; thus allowing the Claimant with a means to check the validity of the ticket on display.
It is the Defendants reasonable belief that the Claimant has intentionally filed an unsubstantiated claim in it’s efforts to collect an inflated and incorrectly applied penalty.
The Defendant therefore invites the court to strike out the claim as the Claimant has no basis for success.!

3. The Claimant’s Particulars of Claim disclose no legal cause of action to give rise to any debt and do not comply with CPR Part 16 and Practice Direction 16 7.5.

The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts proceeding the alleged cause of action.

The Particulars of Claim states only ‘parking charges’. No particulars are offered in relation to the nature of the agreement, the method the Claimant calculated any outstanding sums due, how they became due or any other matters necessary to substantiate the Claimants claim. The Defendant cannot see how this could be considered a fair exchange of information. Due to this the Defendant doesn’t consider the particulars of claim to be valid, and therefore invites the court to strike out the claim on this basis.!


2. The Claimant has not complied with pre-court protocol and has acted unreasonably.

There was no compliant ‘Letter before Claim’ under the Practice Direction. A Letter before Claim was sent to the Defendant; however, this Letter before Claim didn’t comply with the Practice Direction and provided insufficient information. The defendant responded to this LBC on 25/4/2017 and requested copies of the parking notice, evidence of the alleged action of the driver in accordance with the Over-riding objective, evidence of signage terms and evidence of the Claimants right to bring this claim.. The Claimants solicitors acknowledged only part of this request, providing non-timestamped photographs of vehicle MK07LV, with all other requests for information ignored. Therefore the Defendant holds a reasonable belief that the claimants solicitors do not possess this information and issued the claim without any due diligence or inspection of this individual case. Withholding evidence and the basis for a claim made against the Defendant, despite this being requested, goes against the SRA code and is contrary to the over riding objective in the pre action protocol.

Furthermore, the original Letter before Claim was missing the following information:
-The cause for action on which the claim was made. The LBC referenced ‘parking charges’ but that in and of itself isn’t a basis for a justifiable claim.
-A clear and detailed summary of the facts on which the claim is based. The original letter fails to provide any detail or evidence around the circumstances surrounding theses charges and why these are owed.

The Defendant refers to the Practise Direction section on non-compliance and sanction, there can be no justifiable excuse for the Claimant’s failure to follow the Pre-action conduct, especially when the claim was issued by the Claimants solicitors.


5. The website for payment of the parking notice is in the name of IP Car Parks Limited, not the Claimant. The Defendant has the reasonable belief that the Claimant does not manage the car park and puts the Claimant to proof that there is an innocent reason for the contradiction.

6. The identity of the driver of the vehicle on the date in question has yet to be ascertained.
The Claimant did not identify the driver.
The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the drivers alleged breach.

7. The signage on-site is not clear, prominent or legible as per Parking Eye v Beavis. (REFERENCE)It is inadequate to form a contract. The charge is buried in the small print and is an unfair term. The site in question also features signage breaches as per the BPA signage regulations. (REFERENCE/QUOTE) The entrance to the site is confusing. At neither the street name/location cited on the Notice to Keeper nor the coordinates for the car park as provided by the Claimant, are there clear and prominent terms on display. The Claimant in this case has displayed several distracting signs at various entrance points into the car park, which is not compliant.
In addition, the signage does not contain an obligation as to how to ‘display’ the ticket, therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA. The terms are not clear, prominent and legible as per Parking Eye v Beavis and the Defendant would like to point out that this car park can be fully distinguished from the details, facts and location in the Beavis case. This site does not offer free parking, nor is there any comparable ‘legitimate interest’ nor complex contractual arrangement to disengage the penalty rule, as ParkingEye did in the unique case heard by the Supreme Court in 2015. And whilst the Claimant has withheld any photos of the signs on site, the Defendant does contend these are illegible with terms hidden in small print, unlike ‘clear and prominent’ signs which created a contract Mr Beavis was ‘bound to have seen’.

8. The Claimant sent increasingly threatening and misleading demands which, whilst evidencing no contravention, stated failure to pay the charge would result in enforcement action and an increased charge. No figure for an additional charge was agreed nor could it have formed part of the alleged contract because no such indemnity costs were quantified on the signs. Terms cannot be added on later with figures seemingly produced out of nowhere.

9. The Defendant has reasonable belief that the claimant didn’t pay their legal representatives £50.00 to prepare the deficient claim that is quite clearly a template with no case specific input.
And so the Defendant does not belief the Claimant has incurred £50 costs to pursue an alleged £100 debt.
Notwithstanding the Defendants belief, the costs are in any case unrecoverable.
The Claimant describes the charge of £500 “legal representative’s costs” not “contractual costs”. CPR21.14 does not permit these to be recovered in Small Claims Court. (QUOTE)

10 The Defendant admits that only a limited contract to display and pay the stipulated tariff was entered into at the Pay and Display machine/Point of Sale, where the only sums of money in clear, legible lettering were the parking tariffs. The Defendant denies that the contract was breached or that the Claimant has suffered any loss and puts the Claimant to strict proof of the notices on/at the Pay and Display Ticket machine.
Alternatively if the Defendant did breach its terms, such breach was de minimis and caused the Claimant no loss.(EXPLAIN/REFERNCE DE MINIMIS)

11. The Claimant has at no time provided an explanation as to how the charge has been calculated, the conduct that gave rise to it or why the amount increased from £100 to £160. This appears to be an unqualified additional cost and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
The Protections of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

12. The signage provides for a parking charge of £100 if the terms and conditions of parking are breached. The Claimant seeks £160 which is an extravagant and unconscionable penalty, and therefore unenforceable!- particularly as the Defendant has shown that a valid ticket was purchased and displayed and so the Claimant has therefore suffered no loss, and in addition because any breach of contract (which, for the avoidance of doubt, is denied) was ‘de minimis’.

13.The Particulars of Claim contains no details and fails to establish case of action which would enable the Defendant to prepare specific defence. Therefore, as an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant’s case.

Thanks in advance.

Elysander

Madsue wrote: »

Hi Anita86, I have been in Manchester County Court today defending SIP claim against me. It was a totally different senareo, but the SIP / Gladstone brief kept stressing it was part of the contract with you that you didplayed the ticket On the dashboard, it was never stated that it had to be the right way up.
Do carry on these people cannot be allowed to get away with this money making scam.

In my case the jjudge was very fair and dismissed my case. RESULT?

Congrats on your victory today

I was at the court briefly today and spoke to a lady who was defending a SIP claim for Spear Street Manchester. I asked the lady if she would be kind enough to let the forum know how she got on - was that you?

The man representing SIP is one of their employees

[Deleted User]

1.2. sounds fancy, but is basically pretentious and adds nothing.
1.3 adds nothing.
3. Remove the exclamation mark
(Second para) 2 - is a confused Mish mash of stuff. The overriding objective is CPR1 not the pre-action protocol. Poor LoC is irrelevant once they have pleaded a case.
9. A claim for costs from a party in excess of those claimed should be termed a breach of the indemnity principle
10. No explanation is needed to the concept of de minimis
12 and 13 duplicate what is largely stated elsewhere.

Just a random thought (I'd be interested in particular for the thoughts of LoadsofChildren123) as to the potential applicability of willers v Joyce [2016] UKSC 43
https://www.supremecourt.uk/cases/uksc-2015-0154.html (paras 55 and 56 of interest)

May be useful where:

1. As here, a ticket was purchased and evidence provided to C but they still pursue
2. They know or don't care that claim unlikely to succeed with a view to securing out of court settlements (remedy to which not entitled)
3. At cost to and waste of court resources

My knowledge management team flagged it to me today whilst looking at something else entirely - it seemed to me feasible that it could have potential applicability in the right PPC cases. Not a magic bullet.

KeithP

In 9 - Surely £500 “legal representative’s costs” should be £50 “legal representative’s costs”.

Anita86

Thanks guys, will amend/omit as suggested this eve.