Court papers SIP/ Gladstone “failure to display”

bargepole

The_Deep wrote: »

Or, you could ditch all that legal stuff, which I am sure gets up a lot of judges' noses, and simply tell the truth. You bought a ticket, displayed it as agreed, the right way up, you did not bilk, you did not obstruct fire engines and ambulances, and that is that.

Parking companies have been exposed time and time again as dishonest, they consistently take to court undeserving cases, and deliberately try to trap people.

NCP have been landed with huge costs, as has OPC, UKPC has been exposed in national newspaper as issuing fraudulent tickets, and many use unlawful methods of obtaining evidence, (Ibbotson).

I am sure that, if you run Jonersh's defence, you will prevail, but this is a piddling parking fine from a smallish company. Are there not too many eggs in this particular pudding?

More inappropriate advice, I'm afraid. What happened to other PPCs has no relevance to this case.

Yes, some Judges may simply dismiss the claim based simply on the fact that the OP bought a ticket, and that's the end of the matter.

But there are many others who will say, well the T&Cs say it must be clearly displayed, and it wasn't, so you breached the terms and are liable to pay the charge.

The Defence should always start with the strongest and most obvious argument, but you need other arguments to back that up if you don't succeed on the first point.

The object is to try to avoid falling foul of DJ Bingo.

Bucko78

Thanks for the response.

I’ve always believed that keeping things simple is the way to go.
Nobody goes out and parks up, to deliberately cause a breach or to antagonise the parking companies.

we did as the requirements set out, like you say .. no one got hurt, no one lost, and nobody suffered by what (we) did..well not me personally, anyway..

I would have liked to have formed a defence whereby a Leyman could read it and grasp a firm understanding of the manipulation being caused, but like anything in this life it may go the other way if the person reviewing it has nothing firm to hang their judgement upon.
For that reason it’s only human nature to ‘gold plate’ everything to make sure there are no avenues which could leave somebody exposed.

I work in construction management and we fill in form after, form which cover the same thing (just to make sure we’ve done everything ‘reasonably practicable’ to ensure we’ve covered all bases..)
As you can imagine I spend 30 to 40% of my time doing health and safety.. and not the profession I should be doing.. what a world we live in..

[Deleted User]

I am sure that, if you run Jonersh's defence, you will prevail, but this is a piddling parking fine from a smallish company. Are there not too many eggs in this particular pudding?

So you like custard and I like creme brulee. So long as your pudding gives the claimant their just dessert, what gives?

FWIW i've taken out much more than I've added. The alternate defence belongs to the o/p. You will note that I have queried whether it is applicable. After all, the signs were clear enough that a ticket was purchased.

The_Deep

More inappropriate advice,

Mr C, I have framed on the wall of my office a Royal Commission, signed by Her Majesty in which she refers to me as "trusty and well beloved and in whom we are well pleased".

I think that your recent achievement at the MK degree factory may have gone to you head.

bargepole

The_Deep wrote: »

More inappropriate advice,

Mr C, I have framed on the wall of my office a Royal Commission, signed by Her Majesty in which she refers to me as "trusty and well beloved and in whom we are well pleased".

I think that your recent achievement at the MK degree factory may have gone to you head.

I was under the impression that a Royal Commission is a body set up to conduct an enquiry into some matter of national importance.

But whatever is on your office wall, Her Majesty is, no doubt, pleased with your efforts at the F&CO some years ago, dealing with all those Jonny Foreigners who start east of Calais.

She may be less pleased if she knew that users of her Courts & Tribunals Service were being inappropriately advised on the conduct of their cases, and might even send a Royal Equerry round to have a quiet word.

The_Deep

I shall prepare the cucumber sandwiches.

Coupon-mad

Have you sorted out the numbering, Bucko78?

The_Deep

You are clearly entitled to express your own opinions, but you shouldn't be posting on OP's threads with advice or suggestions which fly in the face of provable facts.

Mr C, it was neither. It was a hypothetical question, an expression of moral outrage.

Bucko78

Hi Johnersh (and all), think I’ve covered the revised articles and added omitted the loose wording.. please find my final draft below..

Thankyou all an advance..


DEFENCE

Preliminary
1. The Particulars of Claim lack specificity, they inform the defendant of the following:
The driver of registration ********* incurred parking charges on the date********* for breaching the terms of parking on the land at **************
The defendant was the driver/ keeper and the Claimant claims £160 for parking charges / damages and indemnity costs if applicable together with interest of £5.69 pursuant to S69 of County Court Act 1984 at 8% pa, continuing judgement at 0.04 per day.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.


Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it.

4. It is admitted that on [date] the Defendant's vehicle was parked at [location]

5. It is admitted that the Defendant was the driver of the vehicle on the date of the alleged offence.
The Claimant is put to strict proof
5.1. There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort

6. The Defendant is alleged to have breached the terms and conditions by failing to display a valid ticket, this is denied; the allegations are both untrue and unfounded. The Defendant avers that a valid ticket was purchased and that it was displayed in accordance with the directions stated on the ticket as follows:
6.1 The Defendant purchased a ticket at XX Hours for a period of YY hours; and
6.2 The purchased ticket was displayed on the dashboard/fascia area of the vehicle directly in front of the instrument binnacle on the driver's side;
6.3 The purchased ticket would have been visible to a responsible body of car park operatives. It is denied that the ticket was not displayed in a manner in which it could both be seen and checked. The Claimant is put to strict proof that the ticket was not displayed.
6.4 Such photographs as are relied upon by the Claimant are inaccurate and misleading being cropped or taken from such an angle so as to display only areas of the vehicle from where the parking ticket purchased was not visible.
6.5 The parking operative is required to provide written and oral testimony before the Court. The Defendant will produce to the Court photographic evidence of the ticket in situ, taken contemporaneously in due course, together with his own witness evidence.


Alternative Defence - Failure to set out clearly parking terms

7. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
8. The Defendant avers that the parking signage in this matter was, without prejudice to his primary defence above, inadequate.
8.1.At the time of the material events the signage was deficient in number, distribution and wording to reasonably convey a contractual obligation;
8.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
8.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3.
You may wish to check these "boilerplate" allegations re signage do apply here

9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

Conflict of interest
10. The Defendant has not appealed to the Independent Appeals Service (IAS) to appeal his ticket prior to the issue of proceedings. The reasons for not doing so are as follows:
10.1. The IAS is an organisation funded by the International Parking Community (the IPC). The IPC is a member funded trade organisation of parking companies.

10.2. Both the IAS and IPC are owned by or are sub-divisions of United Trade and Industry Limited. The directors of that business at the date of the parking ticket being issued were John Llewellyn Gladstone Davies and William Hurley

10.3. It is noted that the solicitors now instructed in this matter on behalf of the Claimant are Gladstones Solicitors Limited. The directors of that company at the date of the parking ticket being issued were John Llewellyn Gladstone Davies and William Hurley

In all the circumstances, it is averred that once a ticket had been issued in this matter, there was no course of appeal that was truly independent or impartial. The Defendant has not been offered proper recourse to alternative dispute resolution, notwithstanding the existence of the IAS, which appears to be a veneer. That the law firm instructed to proceed with the claim are directly linked with the body issuing tickets via a trade association was and is a significant concern. The Defendant had no confidence that any appeal, if lodged with the IAS, would have been properly considered.[/B]

11. The Claimant's representative has been provided with a copy of the valid ticket. The Claimant is aware that there has been no financial loss. It is denied that the Claimant has sustained any loss or that there was any breach of terms that may entitle them to damages under contractual provisions or otherwise.




LOSS CLAIMED, COSTS AND INTEREST
12. If, which is denied, the Claimant was entitled to issue a parking ticket for which a charge is payable, It is denied that the amounts claimed by the Claimant are permitted by the terms of the contract or in law.
12.1 The signage refers to the amount of the charge being X. If the costs of enforcement are notional or predictable, these should appear on the sign if they are to be capable of agreement.
12.2 Legal costs are not recoverable in the small claims track pursuant to Part 27 CPR other than HMCTS costs
12.3 The correspondence from agents appointed by the Claimant appears to have unilaterally and arbitrarily applied additional charges without explanation or entitlement. These are not actual costs or costs incurred by the Claimant. It is averred that debt recovery agencies work on a no win/no fee basis and that no enhanced costs have been incurred at all. The Claim for such costs is an abuse of process and a breach of the indemnity principle.

13. For the reasons aforesaid, it is denied that the Claimant has any entitlement to the sums sought.

14. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true

Coupon-mad

Personally I wouldn't quote their POC, no need, so I would have #1 and #2 like this:

1. The Particulars of Claim lack specificity. They fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol For Debt Claims, 1st October 2017). 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.

and I would amend #5 just so it reads better:

5. It is admitted that the Defendant was the driver of the vehicle on the date of the alleged offence.

5.1. It is denied that there was any ‘relevant obligation’ either by way of a breach of contract, trespass or other tort and the Claimant is put to strict proof.

And at your point #11 they will shout ''Beavis case! Doesn't matter if there's no loss!'' so I would try to pre-empt that:

11. The Claimant's representative has been provided with a copy of the valid ticket. The Claimant is aware that there has been no financial loss. It is denied that the Claimant has sustained any loss or that there was any breach of terms that may entitle them to damages under contractual provisions or otherwise.

11.1 This parking charge is unjustified and unconscionable, when compared against Lord Dunedin's four tests for a penalty, which were held in ParkingEye Ltd v Beavis (2015) UKSC 67 (the Beavis case) to be a relevant consideration in every case where the penalty rule was potentially engaged. The Beavis case did not remove that test (indeed the Supreme Court refused such a suggestion) and the £85 charge was only saved from being struck down as a penalty by a specific 'legitimate interest' argument 'taking into account use of this particular car park and clear wording of the notices'. Parking charge cases are very fact-specific and what may have been recoverable on one set of facts is not recoverable on another.

11.2 This case can be easily distinguished from the Beavis case, where the Judges held the facts were 'entirely different' from most ordinary economic contract disputes, such as where an hourly fee rate in a paid car park is easily quantified. It was further confirmed in the Supreme Court that inflated parking charges cannot be levied as fines merely to punish drivers.

11.3 (The Beavis case) Lord Mance at 152: ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable.''

11.4 (The Beavis case) Lord Mance at 191: ''ParkingEye argued that Parliament has, by the Protection of Freedoms Act 2012, effectively recognised the legitimacy of a scheme such as theirs, in a way precluding or at least militating against any application of the penalty doctrine. The judge and Court of Appeal (para 28) also found some support in this Act for the view that charges of this kind are not to be regarded as unenforceable. In my view, that is a misreading of the Act. The Act merely “makes provision for the recovery of unpaid parking charges from the keeper or hirer of a vehicle” (section 56), in circumstances “where (a) the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land; and (b) those charges have not been paid in full” (Schedule 4, paragraph 1). The reference to a relevant “obligation” does not exclude the penalty doctrine. On the contrary, if a charge stipulated contractually is a penalty, there will be no obligation''... {adding at 193}: ''The penalty doctrine is therefore potentially applicable to the present scheme.''