ESPE PCN County Court Letter

claxtome

In my opinion it is nearly there.

Comments:
1) Just refer to the other side as the 'Claimant' not 'Claimant company'.
2) I would suggest the first time you refer to POFA you fully quote the name and state "henceforth referred to as "POFA""
3) I spotted a grammatical/spelling error in 13 there maybe others.
4) Did you mean to use conflated (combined) in 13

Coupon-mad

That is very repetitive and generic, so I've attempted to start again and re-write it.

Maybe use this instead, if I've got all the facts right:

IN THE COUNTY COURT BUSINESS CENTRE

CLAIM No. DXXXXXXX

BETWEEN

ES Parking Enforcement Ltd(CLAIMANT)

-and-

xxxxx xxxxxxxx (DEFENDANT)

________

DEFENCE
________

1. The Defendant denies that the Claimant is entitled to the relief claimed, or any amount at all.


Preliminary
2. It is admitted that the Defendant was the registered keeper of the vehicle at the material time. However, the driver on that occasion has never been identified, the first demand having arrived many weeks after the alleged event.

2.1. The Particulars of Claim lack specificity and are embarrassing. The Claimant has failed to comply with the requirements of Civil Procedure Rule 16.4, as its sparse Particulars do not disclose any cause of action which could give rise to a claim.

2.2. This Claimant has failed to set out the basis of the claim. Despite bombarding the Defendant with demands, it has not specified how the sum sought represents any fee, charge, indemnity costs or damages actually incurred, nor evidenced that any contract existed or was breached, nor shown any cause of action that can lead to any liability of the Defendant registered keeper.

2.3. The Defendant received various threatening letters from number of different companies: ES Parking Enforcement, Wright Hassall Solicitors, a no-win-no-fee debt collection firm called ZZPS and finally, Gladstones Solicitors.
The letters were intimidating and demanded varying escalated sums of money, threatened bailiffs, and generally aimed to mislead the Defendant as to the court process, which caused significant distress to the Defendant and his family.

2.6. No valid possibility of fair appeal or ADR was offered; the so-called Independent Appeals Service ('IAS') being a misnomer, set up by the same Directors as the Claimant's own Trade Body and Gladstones Solicitors who have conduct of this case. The Defendant chose not to engage with any purported appeals process/the IAS, due to this clear conflict of interests and regularly publicised reports of unfair and wholly bizarre decisions of its kangaroo court, being weighted heavily against consumers.


No valid Parking Charge Notice ('PCN') and no 'registered keeper liability'
3. It is denied that a compliant or valid parking charge notice ('PCN') bearing the correct VRN was issued to the vehicle. The Claimant is put to strict proof.

3.1. The only PCN found on this vehicle had a different registration number to the one of the actual vehicle so it is a nullity, as such, no proper notice to the driver was ever actually served. The notice also fails to specify the relevant land, merely stating one word, rather than the actual address or land that the vehicle was parked.

3.2. Any alteration in details between PCN and notice to keeper ('NTK') voids any possibility of seeking keeper liability, since such a change would fail under the strict terms of the only applicable statute, the Protection of Freedoms Act 2012 ('the POFA') Schedule 4.

3.3. A significant breach of the POFA paragraphs 6 and 7(2)a and 8(2)c (defining the details which must appear in statutory notices) has occurred, among other omissions, including (but not limited to): failure to comply with paragraph 4(5) which forbids double recovery and specifically limits the recoverable sum, a failure to evidence any 'relevant obligation' or 'relevant contract' and failure of the requirement for 'adequate notice' of the parking charge/penalty.


ParkingEye Ltd v Beavis is distinguished
4. ParkingEye Ltd v Beavis [2015] UKSC 67 is fully distinguished from this claim, due to the completely different facts, including but not limited to:
(i) the lack of any legitimate interest in pursuing more than an alleged unpaid tariff, in a case where damages are quantifiable (unlike in Beavis);
(ii) The Claimant's failure to follow the effectively binding Code of Practice.
(iii) the lack of 'keeper liability' (not tested in Beavis at all);
(iv) the lack of relevant obligation and/or relevant contract;
(v) the void parking charge notice and alteration of VRN later shown in the invalid NTK; and
(vi) the failure to fairly warn drivers about the penalty sum in large lettering on prominent signage, in at least as clear font as the smaller sums set out at the machine, being the point of sale where the driver would reasonably expect to read the terms of parking.


No agreed contract to pay more than the advertised tariff
5. The 'parking charge' (penalty sum) at this location is positively buried in small print, and is not mentioned on or adjacent to the payment machines at all. This is contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015. No contract was agreed, save the agreement to pay a 'full day' 24 hour tariff, which the Defendant avers that the driver did.

5.1. It is denied that in addition to the parking tariff, there was any agreement to pay any penalty at all. It is further denied that the driver was informed about or agreed to liability for any further, additional and unspecified 'indemnity' sums. Such added costs are unsupported by the Beavis case, where only £85 was recoverable, a sum held to include 'significant profit' and to more than cover the basic £12-£15 typical costs of a single PCN pursued with automated letters by a parking company.

5.2. Any added costs (save for court fees) are sums that are plucked from thin air and were never incurred by this Claimant, who is put to strict proof of any 'indemnity' or damages that can possibly arise over and above the already inflated penalty, and to explain how a parking firm not in possession of land, can pursue damages at all.

5.3. A contract was only formed to pay a tariff but the terms were ambiguous, in that they conflated ‘1 day parking’ as if it was ’24 hour’ parking. Under the doctrine of contra proferentem, such an ambiguity must be interpreted that most favours the consumer. The driver did not 'overstay' a 24 hour period and held a reasonable belief that the correct tariff had been paid to cover the period of parking.

5.4. No contract to pay a £100 fine was agreed, or even known about, as the sum was hidden in small print and not declared at the point of sale (the machine). This location fails to meet the “Red Hand Rule”, as set out in the leading judgment in J Spurling v Bradshaw [1956] EWCA Civ 3, where Denning MR stated: “The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient”.

5.5. The Beavis case reiterated the requirement for fair and open dealing, at paragraph 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

5.6. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that must be used to form contracts. It says: ''It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge.''

5.6.1. The defendant refutes that there were clear and visible signs at the payment machine, from which the driver could have read and understood, not only to learn that his/her payment was not covering the expected 24 hour period for a day's parking, but that there would be a disproportionate £100 fine for being misled by the ambiguity of the parking tariffs as described.

5.7. The Claimant is put to strict proof they have authority to operate on site and to take action in their own name. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner, and no evidence has been produced to show that the landholder agrees and authorises that drivers paying in good faith to park for 24 hours/a full day, can be fined by this Claimant despite leaving within the (unclearly-described) paid-for time.


Breach of Consumer law - unfairness of terms and misleading omissions
6. It is averred that this misrepresentation of ambiguous terms against a consumer and to their loss or detriment, is a misleading omission as defined within the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) which implemented the EU Unfair Commercial Practices Directive and says:
Misleading omissions: 6.—(1) A commercial practice is a misleading omission if, in its factual context:
(b) the commercial practice hides material information,
(c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely...

6.1. Further, the Defendant avers that such terms including the penalty itself and also the added 'costs' bolted onto this claim from thin air, are unfair and breach Part 2 'Unfair Contract Terms' of the Consumer Rights Act 2015 (the CRA).

6.1.1. The CRA was enacted after the Beavis case final hearing, and remains untested in the context of unfair parking penalty charges.

6.1.2. This legislation requires that key terms of a contract, including price, must be assessed for fairness by a court, where those terms are not both 'prominent and transparent' (which the Defendant avers they are not). Examples of terms that may be unfair under the Consumer Rights Act include: charges hidden in small print; added costs not specified prominently and clearly in the contract, and disproportionate default charges.

6.1.3. In the CRA at 71, it sets out the duty of court to consider fairness of a consumer contract term: (2) The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it.

6.1.4. The Court's attention will be drawn to the CRA at SCHEDULE 2, a non-exhaustive list of 'Consumer contract terms which may be regarded as unfair'.


Wholly unreasonable and vexatious claim
7. It is submitted that the conduct of the Claimant in operating a predatory model with what appears to be deliberately ambiguous and scarce signage within hidden small print, then intimidating the Defendant with misleading threats in the pre-action stage before pursuing this claim, is wholly unreasonable and vexatious.

7.1. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs on an indemnity basis, pursuant to Civil Procedure Rule 27.14(2)(g).

8. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

9. In the alternative, when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed:

Date:

Also I'm having a trip out to Liverpool in the morning to obtain photos of the signs, but ill make a day of it

Get pictures of how the P&D machines look and what they display as t&cs (NOT just the random signs) and make it evident that someone standing at a machine would NOT read anything about £100, only about the tariffs (and get pics of the tariffs as misleadingly described).

Your photos will NOT accompany this defence. Evidence comes later.

I removed this unless you are really DENYING being the driver? If you can honestly deny being the driver, add it back in where you admit to being the registered keeper.

It is denied that the Defendant was the driver of the vehicle.

Here's Schedule 2 of the CRA that you will need to file later, with your Witness Statement:

http://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

and here's the 'misleading omissions' section of the CPUTRs that you will also file:

http://www.legislation.gov.uk/uksi/2008/1277/regulation/6/made

spyro101

Thanks again, and a huge thank you to Coupon-mad.

I decided to go with Coupon-mad's version and I submitted the defence yesterday via email.
Im hoping that the court will accept this as a submission, I have read from the newbies thread that people have done it that way.

I tried contacting the court today to ensure that what I have done will actually count as submitting my defence however it just rang busy after the automated message :huh:

Anyway thanks again all, Ill now await a response

spyro101

Hello again all,
I have received my Directions Questionnaire (N180)
Should I wait to receive the claimants DQ before sending mine off or am I good to go?

Thanks in advance.

Coupon-mad

No need to wait, a DQ says nothing useful. Make sure yours says you want an oral hearing, and should G's suggest the case is heard on the papers you categorically disagree and wish to represent yourself in person, to give face to face evidence.

Gladstones DQs often say nothing (blank copies are sent to Defendants!) and are accompanied by the usual letter you will be expecting already, about the case being 'straightforward' so they want it heard on the papers (course they do...).

claxtome

Also I'm having a trip out to Liverpool in the morning to obtain photos of the signs, but ill make a day of it.

I hope the trip was fruitful and have plenty of photos of the misleading signs.

If you want the forum to look at them in case we can help further you can host them in the cloud like Dropbox or tiny pc etc and post a link to it.

Note: the link you have to break it suggestion is to replace http with hxxp.
A regular will post the link correctly.

spyro101

Hi again all,

Returned the DQ, still no DQ from gladstones.

Ive had a confirmation letter from the court that they have received my DQ and are now looking into the case.

Below are the photos I have of the signs in the carpark - I believe they may have been changed as you can see outlines of the old transfers on the sign.

Also let me know if you cant view the photos.

Thanks again

dropbox(dot)com/sh/50rj18v71xoalpi/AADXIJMPxwgWX8UvkFHAZ8Awa?dl=0

claxtome

https://www.dropbox.com/sh/50rj18v71xoalpi/AADXIJMPxwgWX8UvkFHAZ8Awa?dl=0

Hope that works as can't check the link

Castle

claxtome wrote: »

www.dropbox.com/sh/50rj18v71xoalpi/AADXIJMPxwgWX8UvkFHAZ8Awa?dl=0

Hope that works as can't check the link

Yes..it works well. The first sign on entering the car park states that any overstay/breach will result in the vehicle being clamped with a release fee of £125.

claxtome

I have of the signs in the carpark - I believe they may have been changed as you can see outlines of the old transfers on the sign.

I can see what you mean.
Difficult to prove but can be mentioned at Witness Statement (WS) stage.

Interesting what Castle noticed on the entrance sign.
Shows it is an old sign as you can't clamp nowadays.