Help with defence

Willow229

Hello,

I have previously has assistance from this forum in relation to my case. I have started this new thread to request help with drafting my defence.

Background
I received a parking ticket courtesy of SIPP parking in Feb this year. I had purchased a ticket and displayed it in the front window but it was a windy day and it had blown onto the floor when I shut the door. I still have the ticket I purchased.
I stupidly ignored the letters from SIPP. When I received the LBCC from Gladstones I sought help from this forum. I replied to Gladstones and received what looked like a generic letter which addressed several points that I had raised and several that I didn't. It did not respond to several of the points I did raise. They took nearly 2 months to respond to my letter. I again wrote to them again asking them to address the points they had not responded too. They have not replied to this letter. I have obtained proof of posting for both letters.
I have now received a county court letter and am wondering what to put in my defence statement.

Coupon-mad

Read post #2 of the NEWBIES thread then show us your draft defence, after doing the AOS. All explained there.

Redx

also look for recent SIP PARKING - GLADSTONES court case threads where people are already along the same path , then adapt what they are currently doing or have done

like the one by thismakemesad lower down the page

KeithP

Why have you started a second thread?

Willow229

In #2 Newbies thread it advised to start new thread

Coupon-mad

Yes, after doing the AOS.

And if you read any other similar threads (which you must, IMHO) you will see you then show us your draft.

Redx

previous thread is here for any background info

https://forums.moneysavingexpert.com/discussion/5680604

Willow229

Hello again,

Here is my first draft and I welcome any feedback

Thanks in advance

Statement of Defence
I am the defendant in this matter and the registered keeper if the vehicle.
The claim is denied in its entirety. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's case.
1. The Defendant denies any liability whatsoever to the Claimant.
I did display a ticket which was in place as I left the car and have no idea at what point later it may have flipped over or why. Refusal to accept the ticket as proof of payment when the Claimant's own evidence proves it was there appears to be a case of unjust enrichment over and above the tariff paid. This ‘force majeure’ was caused by strong winds outside the fault of the driver and not something which should be a matter for either party to be bound by, nor for either party to benefit from, in terms of any 'charge' or penalty. In fact it would be reasonable to expect a parking firm, as a purported service provider in a customer car park open to the general public, to provide non-flimsy tickets and a method of attachment such as a sticky or double sided ticket - where they know this is a repeated issue. I include the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' in my defence, because the Supreme Court (and the Court of Appeal Judges) in Beavis were happy to draw similarities with Council PCNs:
http://www.manchester.gov.uk/egov_download...Report_2006.pdf

In DB05057D the adjudicator said: “…having seen the original ticket I note that it is
made of rather thin paper which is likely to be dislodged when a car door is shut. It
may be that the Council would argue that it is the driver's responsibility to ensure that
the ticket is on display when the vehicle is left, but on the other hand if it chooses to
issue pay and display tickets made of such thin paper it must expect that now and
again this type of situation will arise.”

In DB05035M the appellant bought a ticket. It fell from the dash when she closed the door
so she picked it up and replaced it. She then opened the back door to remove some items
and found the p&d on the foot well on her return. The adjudicator had the opportunity to examine
the original ticket. It was made of flimsy paper with no adhesive mechanism.''

In HV05040D the adjudicator accepted the appellant’s evidence that she had
displayed the ticket on the dash and checked after closing the door that it was still
there. He said: “The Council contend that the onus is on the motorist to ensure that
the ticket is properly displayed but except for using sellotape or blutack, which some
motorists do, I do not know what else she could have done. Such measures may be
an answer to the problem but it is a problem created by the Council’s decision to use
non sticky tickets. I am not aware of any signs in the car park suggesting the use of
adhesives by motorists when parking their cars.

2. The Claimant has not complied with the pre-court protocol. There was no compliant ‘Letter before County Court Claim’, under the Practice Direction. The defendant wrote to the Claimant on the 19/7/17 and again on 25/9/2017 with requests to clarify issue. The claimant responded with a generic letter dated 22/09/2017 to muy initial letter, being a generic letter it failed to clairify several issues. The defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action.

3. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information.

4. It is believed that the Claimant has no standing to bring this claim. The proper Claimant is the landowner. The defendant has repeatly requested the Claimant to clairfy if they have specific authority to take legal action and that this will be produced for the court which they have failed to respond to. They have failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to SIPP Parking . The Defendant claims 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.

5. The Claimant has failed to establish driver liability for the parking charges and therefore there is no cause of action.

6. No evidence of parking times has been presented.

7. This charge is not supported by the Beavis case, which held that a charge in a specific retail park was allowable because of the specific, legitimate interests of the operators and landowner, offering a licence to park formed by very clear signage and the fact that the charge was considered not unconscionable, considering all the facts of that case. In my case, it is not disputed that the tariff was paid and it is a fact that the ticket was displayed when parking, so a further charge is argued to fall foul of the penalty rule and is 'out of all proportion' to any legitimate interest.

8. Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in the Consumer Rights Act 2015.

9. Even if the Defendant is found to be liable for the parking charge itself, it is submitted that any added fees are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.

10. The Defendant invites the court to strike out the claim as having no prospect of success.

I believe the facts stated in this defense are true.

Willow229

Bumped up as posted in the middle of the night

Coupon-mad

Bump for others to comment...no time now.

claxtome

Although subtly different to you case, my fluttering ticket case, thread below, is similar and fully expect you can get some further arguments from it. (Fluttering ticket is one that flips over on the dashboard):
https://forums.moneysavingexpert.com/discussion/5715702

Now I stupidly let it slip as to who the driver was so couldn't include NTK failings to do with POFA 2012 Schedule 4 which believe you can include.

I also suggest you look at further SIPP threads as maybe other arguments specific to them.

Just as a matter of interest could you still see the ticket that was on the floor and did the driver by any chance take a photo of this when they got back to the car?

Finally if defending as keeper you need to alter your opening post #1 to refer to "driver" and "keeper".