ES Parking IAS

Tabz123

Redx wrote: »

I would copy the relevant sections only of Beavis , not the whole thing and give it an exhibit reference

I would reference each item exhibit individually , titling it as such as well

So if your initials are abc , I would label each one as

Abc001 , abc002 etc

Then reference abc001 where appropriate in your WS, then abc002 where appropriate , etc
Rinse and repeat

Your court order tells you to serve your WS plus exhibits on both the court and the claimant , I would also make my last exhibit a Costs schedule and label it abc006 if you had 6 exhibits for example

Make up 3 bundles , which is your WS & exhibits & costs schedule

Drop one in at the court and get a receipt

Post one to the claimant (even if emailing it) with free proof of postage from the counter staff

Take the third with you on the day of the hearing

I assume the copy is to go to ESP and not their solicitors ?
Also is there any link you can share for a good example of a costs schedule ?

Tabz123

I have tried using the advanced search functionality for the costs schedule and therefore a link at this late stage would really help.

Coupon-mad

I assume the copy is to go to ESP and not their solicitors ?

No, everything goes to their solicitors and the court.

Also is there any link you can share for a good example of a costs schedule ?

Yes, they are linked in the NEWBIES thread.

Stop using search. Look in the sticky thread that is there as your bible!

You should add this to your WS:

At the time of trying to reason with ESP, the written correspondence to them may have suggested that the ticket was not visible and/or was caught in or near an air vent. However, it is in fact believed, upon reviewing the Claimant's own pictures, that the ticket had fluttered but was most likely visible all along. The Claimant has the burden of proving their case and, on the balance of probabilities, I say that their own blurry photograph evidence appears to show an image of the ticket. Reflection or not, it is perfectly visible and meets a reasonable interpretation of 'displayed on the dashboard'. Thus there was no breach of any relevant obligation or contract.

Make sure that circled image is put in evidence, as it shows the ticket image.

Tabz123

Thanks CouponMad.

You have answered my queries. I will update my WS tomorrow and include the image as advised with the circle.

I will look for cost schedule example and complete tomorrow.

Tabz123

Coupon-mad wrote: »

No, everything goes to their solicitors and the court.
Yes, they are linked in the NEWBIES thread.

Stop using search. Look in the sticky thread that is there as your bible!

You should add this to your WS:


Make sure that circled image is put in evidence, as it shows the ticket image.

The Defence

4. The signage on the Relevant Land is clear and unambiguous; parking is permitted for vehicles
who display a valid pay and display ticket displayed clearly in your front windscreen. As is evident
from my Company’s photographs exhibited to this Statement it clearly shows the Defendant’s
vehicle parked without clearly displaying a ticket in the front windscreen as such the parking
charge was issued correctly and remains owed.

5. The signage at the site is clearly visible and the information on the signage informs the driver of the parking conditions at the location. Signage is prominent throughout the parking area.

Signage location, size, content and font has been audited and approved by the International
Parking Community (“the IPC”). It is the driver’s responsibility, to check for signage, check the
legality and obtain any authorisation for parking before leaving their vehicle. The signage on site is the contractual document. By parking in the manner in which they did, the charge was
properly incurred.

6. It is an integral part of the parking scheme that drivers clearly display a valid ticket in the front windscreen as otherwise the scheme would be unmanageable. If my Company were to waive one charge on the basis put forward in the Defence it would open the floodgates to the waiver of many more charges, making the parking management process that has been put in place entirely redundant. It is the Defendant’s obligation to ensure compliance with my Companys parking requirements.

7. Breach of any term of condition will result in the Driver being liable for a parking charge of £100.
By entering or remaining on this land you agree to abide by all the terms and conditions.

Pay & Display not displayed

8. My Company doesn’t dispute the Defendant may have paid for parking, however it is the
Defendant’s obligation pursuant to the contract (the Sign) to ensure that the ticket is displayed.
As is evident from the photographs they didn’t display their ticket in accordance with the terms.
Unfair/immoral/unethical.

9. The Defendant’s opinion on the fairness of the parking charge cannot impact their liability to
pay. Quite simply, in parking in the manner they did, they understood a charge would apply. My
Company’s charges are issued in accordance with the guidelines set out by its trade association and are industry standard.

10. Paragraph 108 of the Judgment in the Supreme Court case of Parking Eye and Beavis (2015) said
“the concept of a negotiated agreement to enter a car park is somewhat artificial but it is
perfectly workable provided one bears in mind it is objective…” … “In our view a reasonable
motorist would have agreed to the term.” I submit that the term in my Company’s contract was
no more, or no less unreasonable than that in the ParkingEye case.

Targeted charges
11. The Defendant alleges that my Company targets certain motorists. Without concession, this is unsubstantiated. My Company issues charges to all vehicles that it finds to be parked in a manner which incurs a charge. It would be of no benefit whatsoever to my Company to be
selective about which motorists to charge. The fact that another vehicle may not have been
issued with a charge would not impact on the validity of a charge issued to the defendant.

No contract
12. My Company relies on the case of Parking Eye -v- Beavis [2015], in which it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver’s actions as prescribed therein.

13. The signs on the Land are clear and unambiguous. By parking in the manner in which they did, the charge was/were properly incurred.

No authority to enforce charges
14. As the contract is between my Company and the Defendant, my Company does have the
authority to enforce parking charges. However, both VCS v HM Revenue & Customs (2013) and Parking Eye v Beavis (CA 2015) made it clear that a contracting party need not show they have a right to do what they have promised in the performance of a contract, nor is (in the case of a parking operator) the agreement between Operator and Landowner of any relevance. In any event, and without concession, the Agreement exhibited to this Witness Statement evidences my Company’s authorisation to operate / manage the Relevant Land on behalf of the Landowner.

15. Lord Justice Lewison commented in VCS v HM Revenue & Customs [2013] EWCA Civ 186;
(1) “The Upper Tribunal’s reasoning on this part of the case was that since VCS did not have
the right under its contract with the car park owner to grant a licence to park, it could not
have contracted with the motorist to grant such a right. In my judgment there is a serious
flaw in this reasoning.
(2) The flaw in the reasoning is that it confuses the making of a contract with the power to
perform it. There is no legal impediment to my contracting to sell you Buckingham Palace.
If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock
market it is commonplace for traders to sell short; in other words to sell shares that they
do not own in the hope of buying them later at a lower price. In order to perform the
contract the trader will have to acquire the required number of shares after the contract
of sale is made. Moreover, in some cases a contracting party may not only be able to
contract to confer rights over property that he does not own, but may also be able to
perform the contract without acquiring any such right. Thus in Bruton v London and
Quadrant Housing Trust [2000] 1 AC 406 a housing trust with no interest in land was held
to have validly granted a tenancy of the land to a residential occupier. The tenancy would
not have been binding on the landowner, but bound the two contracting parties in
precisely the same way as it would have done if the grantor had had an interest in the
land.

(3) Thus in my judgment the Upper Tribunal were wrong to reverse the decision of the FTT on
the question whether VCS had the power to enter into a contract. Having the power to
enter into a contract does not, of course, mean that VCS necessarily did enter into a
contract with the motorist to permit parking”

Charge is excessive/ no loss suffered
16. The charge sought is industry standard and is set at a rate so as to suitably satisfy my Company’s legitimate interest. In the case of Parking Eye -v- Beavis [2015] it was held that an £85.00 charge was neither extravagant nor unconscionable. The Accredited Trade Associations of which parking operators must be a member in order to apply for DVLA data prescribe a maximum charge of £100. My Company’s charges are within this level. The charge is therefore not excessive.

17. The decision of the Supreme Court made it clear that the charges are not penal, nor do they have
to be reflective of the parking operator’s loss. Further, the charges can be set at a level that
provides a deterrent effect.

Particulars of Claim
18. The Claim is issued via the County Court Business Centre which is a procedure specifically
provided for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of
the Claim. In any event, I can confirm that the Particulars of Claim contained sufficient
information for the Defendant to be aware of what the claim relates to; namely:-
i) The date of the charge;
ii) The vehicle registration number;
iii) The Parking Charge Notice number;
iv) The amount outstanding;
v) That is relates to parking charges; and
vi) That it is debt.

19. Further, prior to proceedings being issued the Defendant was sent notices in accordance with the Act and a Letter Before Claim. As such, the Defendant would have been aware of the charge which is/are the subject of this claim.

Compliance with the Civil Procedure Rules

20. A Letter Before Claim was sent to the Defendant, which contained:-
i) The date of the charge;
ii) The Parking Charge Notice Number;
iii) The location of the charge;
iv) The amount outstanding;
v) The Claimant; and
vi) That the balance relates to unpaid parking charge.
21. Without concession, if there has been any minor deviation from the Civil Procedure Rules then it is (or would be) within the tolerances provided therein whereby the court is required to interpret any provision having regard to the ‘overriding objective’, namely to deal with matters in a just, proportionate and cost-effective way (rules .1.1 and 1.2)

The Current Debt
22. In view of the Defendant not paying the charge within the 28 days allowed they are in breach of the contract. Breach of contract entitles the innocent party to damages as of right in addition to the parking charge incurred.

23. My Company is an Accredited Operator of the International Parking Community (IPC) who prescribes a maximum charge of £100. The Code of Practice states:
"Parking charges must not exceed £100 unless agreed in advance with the IPC. Where there is a prospect of additional charges, reference should be made to this where appropriate on the
signage and/ or other documentation. Where a parking charge becomes overdue a reasonable sum may be added. This sum must not exceed £60 (inclusive of VAT where applicable) unless Court Proceedings have been initiated."

24. In view of the Defendant not paying the charge within the initial 28 days allowed or the further 28 days allowed after the Notice to Keeper has been sent, the parking charge has become overdue and a reasonable sum of £60 has been added.

25. The Sign states the prescribed charge for failing to comply with the terms is £100, however it also specifies.” Where a parking charge becomes due an application may be made to the DVLA for the keeper’s details. Non-payment will result in additional charges for which the driver will be liable on an indemnity basis.” Further the Letter Before Claim also made it clear the debt may increase in respect of costs and interest if a claim had to be issued. Due to the Defendant not paying the charge the matter was passed to my Company's legal representatives, Gladstones Solicitors Ltd, who were instructed to commence legal proceedings. The potential additional costs mentioned above are now sought.

26. The debt has, as a result of this referral risen as my Company’s staff have spent time and material in facilitating the recovery of this debt. This time could have been better spent on other elements of my Company’s business. My Company believes the costs associated with such time spent were incurred naturally as a direct result of the Defendant’s breach and as such asks that this element of the claim be awarded as a damage. The costs claimed are a pre-determined and nominal contribution to the actual losses. Alternatively, my Company does have a right to costs pursuant to the sign (i.e. the contract).

Coupon-mad

We don't need to see the template WS from Gladstones again.

It is not a 'defence' and is not specific to your case, it is the same as all the other threads. Try searching the forum for unusual words from that drivel that we never use, I'd suggest:

integral waive

You'll see. We don't need to go through it again, but you need to read about it.

Tabz123

Ok thanks. I posted it incase they had changed their tact. Of course as part of their pack, they include all my correspondance with them and vice versa..

I assume I dont need to include my correspondance with them as part of my pack?

The real crux of their argument is a ticket may have been purchased yet was not displayed. Esp have presented a number of images but the ticket due to glare is difficult to see. I hope this does not negate the arguments in my WS.

Given the above and last advice on WS, by CouponMad, I will update the WS and send this off.

Le_Kirk

Given the above and last advice on WS, by Coupon-mad, I will update the WS and send this off.

Do you mean hand delivering to the court and by e-mail to the claimant.

Tabz123

Hi yes. The claiment emailed me so was going to respond via email.

In regards the court, I was going to either post or email them (depending on whether the court had an email address).

Coupon-mad

Don't email to court - huge huge danger of them not printing it, and even if they did, it would all be in a heap. This is not how you want the Judge to see your carefully crafted file of papers. Most people take it IN PERSON in a ring binder.

I assume I dont need to include my correspondance with them as part of my pack?

No.

You need to search the forum for:

integral waive

and separately

ring binder costs schedule contents