ES Parking IAS

beamerguy

Tabz123 wrote: »

My MP responded in late Jan and mentioned that they had not heard back from ESP or Gladstones regarding their communications. He suggested that I await the Claim Form and then notify him. He said he would be willing to write a letter of support if required.

Sounds like your MP is a bit of a wet rag like so many of these £70k a year wannabees

What on earth does he/she think will happen with a letter of support ?

Hope you vote him/her out next time

Tabz123

Yes,it has not been the support from him. He said his office wrote letters to ESP but got ignored.However it left me wondering what else they expected was going to happen?

True, the letter of support will not do much. However I have sent them another comms to notify them that my Claim Form has been received and if they can do anything else. Lets see what the response will be.

Tabz123

KeithP wrote: »

Your understanding of the process at this time is right - but no need to send any forms back.

Can I suggest you follow the guidance offered in post #69 above and start by doing the AoS online?

You need to be looking at examples of Defences linked from post #2 of the NEWBIES thread.

Pay particular attention to those concise Defences written by bargepole.

I have read a number of the defences posted on the Newbies thread but can't find anything pertaining specifically to a fluttering ticket case. Unless I missed it. Is there any other recent posts on this forum that you can direct me to?

Tabz123

So I found a thread by 'claxtome' regarding a fluttering ticket case and found the latest version of the defence statement detailed there within. However, I have to admit that a lot of the terms and references are alien to me and of course I don't want to blind copy. Is there any way of breaking down the components to my defence and what the key components should be?

The defence I have found is the below:

https://forums.moneysavingexpert.com/discussion/5715702/fluttering-ticket-going-to-court&highlight=es+fluttering+ticket&page=4#topofpage

Post 74

Tabz123

KeithP wrote: »

Your understanding of the process at this time is right - but no need to send any forms back.

Can I suggest you follow the guidance offered in post #69 above and start by doing the AoS online?

You need to be looking at examples of Defences linked from post #2 of the NEWBIES thread.

Pay particular attention to those concise Defences written by bargepole.

AOS is now completed online.

Coupon-mad

I don't want to blind copy.

You can, claxtome won't mind.

Or use bargepole's concise defence as a base, then add as the facts in the second paragraph, something good cribbed from claxtome.

Tabz123

Ok. I will endeavour to create something this week and post my first attempt. Ideally I will have something polished and ready in good time so that I can crack ln with the Witness Stat in due course.

Many Thanks for the support thus far

Tabz123

Coupon-mad wrote: »

You can, claxtome won't mind.

Or use bargepole's concise defence as a base, then add as the facts in the second paragraph, something good cribbed from claxtome.

I have now completed my defence statement. I cribbed a couple of versions together but this is mainly from claxtome. I have researched all the references and removed any that I either did not understand/ or that were pertinent to my case. Please see below. Any feedback from forum members will be appreciated:

Defence Statement

Preliminary Matters
1. The Claimant has not complied with its obligations set out in the Practice Direction – Pre-Action Conduct and Protocols. This prevents the Defendant understanding the claim and filing a full defence, because a parking charge can be for trespass or breach of contract, both of which are treated differently in law and require a different defence. If a claim in contract, the Claimant has not explained what it claims the terms of that contract were or how it was entered into. No copy of the alleged contract has been provided to the Defendant.

1.1 The Particulars of Claim breach the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached and breach CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a “Parking Charge Notice” with no further explanation; the Claimant thus fails to establish a cause of action which would enable the Defendant to prepare a specific defence; they are not clear and concise as is required by CPR Part 16.4 1(a).

1.2 The Claimant and their solicitor are known to be a serial litigants and issuer of speculative claims, using “template” particulars of claim, with no due diligence.

1.3 In C3GF84Y2 (Mason, Plymouth County Court) [2016] the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where a claim was struck out without a hearing, due to Gladstones' template particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

1.4 On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failed to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the claim was struck out.

2. The Defendant appealed the postal Parking Charge Notice on the XX/XX/XXXX explaining what had happened and included a copy of the ticket displayed on the day providing the Claimant with clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and condition (“T&C”) - as far as they were understood.

2.1 This was an opportunity for the Claimant to act reasonably and cancel the charge.

2.2 Not only was the charge was not cancelled but the appeal was not responded to in a complete manner. Where the Defendant requested information in respect of the authority used by the Claimant to bring the claim; such as copies of the Landowners Agreement, this was ignored.

2.3 The above constitutes a direct breach of Practice Direction - Pre-Action Conduct and Protocols; specifically - paragraph 3 (Objectives), 6(a) and (c) (Steps before issuing a claim) and 8 (Settlement and ADR). Pertinent to this defence is the Practice Direction reference to the Claimant providing the basis on which they bring the claim. As such the court's attention is drawn to the sanctions set out in paragraphs 13 - 16.

2.4 The Claimant’s conduct is also a direct breach of the International Parking Community ("IPC") Code of Practice ("CoP"), Part B, Section 6. The CoP is effectively regulation for the private parking industry, as found by the Supreme Court in the Beavis Case.

3. The Defendant requests the court strike out the claim for want of a cause of action and disregard of pre-court protocol.

3.1 Alternatively, the Defendant asks that court makes an order requiring the Claimant to file compliant Particulars, to include at least the following;
a) Whether the claim is for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
b) A copy of any contract it is alleged was entered into and how (e.g. copies of signage)
c) Whether the Claimant is acting as Agent or Principal, together with documents they rely on in having standing to bring this claim
d) If charges over and above the initial charge are being claimed, the basis on which this is being claimed and calculated
e) If Interest charges are being claimed, the basis on which this is being claimed

3.2 Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

Background
4.The Defendant is the authorised registered keeper and the driver in question at the time of the alleged incident.

The Defendant denies liability for the entirety of the claim for the following reasons:

5. If the claim is brought for breach of contract, the Defendant paid and displayed a ticket so all details could be seen, and was in place the right way up when the car was locked and left parked. The Defendant has no knowledge of the point at which the ticket was not visible on the windscreen, but made all reasonable endeavours, and complied by conduct.

5.1 The Defendant cannot be responsible for the possibility that:
a) A gust of wind may have later flipped the flimsy paper over, despite the windows & doors being locked.
b) The employee of the Claimant may have caused the ticket to move from the windscreen through unintentionally blowing air through the vehicles windscreen air vents.

5.2 None of the above scenarios are within a driver's control (the Defendant was by that time, absent from the location) and it is evident that someone else – or a factor outside anyone's control – was to blame. This appears to have been a case of casus fortuitus "chance occurrence, 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.

5.3 Notwithstanding the above, the flimsiness of the ticket certainly played its part, and that is within the control of the Claimant, who must be well aware of the problem, which has become known as ''fluttering tickets''. Because they profit from drivers' misfortune caused by their own tickets' inability to withstand British weather, it is averred that this Claimant wilfully failed to address this issue (e.g. by adding sticky backing to the ticket, allowing it to be fixed in place).

5.4 The Court is invited to consider the fairness of the position in this case, giving due consideration to the flimsiness of the piece of paper provided, which appears to cause significant imbalance in the rights of a consumer, to their detriment, and the Defendant relies on Section 62 of the Consumer Rights Act.

5.5 The term, ‘A valid ticket must be purchased to park on this site and be displayed clearly in your front windscreen’ in particular the meaning of ‘displayed clearly’ is not transparent per Section 68 of the CRA 2015. Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that any uncertainty must be resolved in favour of the consumer.

5.6 A valid ticket was displayed in the front windscreen of the Defendant’s vehicle. If the Claimant wanted to impose a different term to require the ticket to be displayed in a prescribed manner (eg face up), then the terms should have stated this clearly and unequivocally.

5.7 The Claimant does not dispute that the Defendant purchased a ticket, that it gave him a licence to park for the entire day and that it was displayed on the dashboard at all times.

5.8 The Claimant has not acknowledged to the Defendant that the rear of the ticket had on it a serial number. The purpose of the serial number must have been so that the Claimant could trace the details of pay and display ticket and must indicate that the Claimant accepted the possibility that the ticket could flip over, unknown to the driver. This is invaluable should the ticket not have been face up as is claimed by the Claimant.

Locus standi
6. The Claimant has failed to establish its legal right to bring a claim either as the landholder or the agent of the landholder and therefore would have no locus standi to bring this case per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd.

6.1 Parking Eye Ltd v Beavis [2015] UKSC 67 showed that the Claimant does not have a wider legitimate interest extending beyond the prospect of damages, as their interest is only limited to the recovery of compensation for the alleged breach of contract, and no commercial interest has engaged as to the control of parking as the Defendant had paid for a licence to park.

No advertising consent for signage
7. The Claimant is not entitled to rely on an illegal or immoral act in order to profit from it, pursuant to the doctrine ex dolo malo non oritur actio. In this matter, the Claimant does not have advertisement consent in relation to its parking signage on the land in question (which are classed as “advertisements” under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended). This is a criminal offence under Regulation 30 of those Regulations. Accordingly, as a matter of public policy and pursuant to the doctrine, the Claimant should not be allowed to found a cause of action on unlawful signage. The rationale for this is set out in the case of Holman v Johnson (1775) 1 Cowp 341 and was reaffirmed in RTA (Business Consultants) Ltd v Bracewell [2015] EWHC 630 (QB) (12 March 2015). The Defendant also relies on Andre Agassi v S Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507 and ParkingEye v Somerfield Stores [2012] EWCA Civ 1338.

7.1 In addition, the Claimant is in breach of various statutory and regulatory provisions set out in the Consumer Protection from Unfair Trading Regulations 2008 (Regulation 3 – a breach of which is an offence under Regulation 5), the Consumer Rights Act 2015 (Sections 62 and 68 and Schedule 2) and the Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013 (Regulation 13). Again, the court should not lend its aid to the Claimant in founding a claim based on its unlawful and/or immoral conduct.

Claimant is seeking a penalty and inflated costs
8. The Claimant seeks £160 which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown he did purchase a valid ticket and the Claimant has suffered no loss, and because any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.

8.1 The Claimant is under a duty to mitigate its loss. It failed to do so by ignoring the serial number on the rear of the ticket which would have enabled it to establish that the Defendant had paid for a full day’s parking.

8.2 £60 of the £160 ‘parking charge’ (for which liability is denied) the Claimant has untruthfully presented as contractual charges, which amounts to double charging, which the PoFA 2012 Schedule 4 specifically disallows. Any term allowing for the Claimant to pursue such additional charges must be void for uncertainty. In any event, such charges must be covered by the addition of the discounted element of the charge after a driver has failed to pay within 14 days (£40).

8.3 There is no possible commercial justification for the Claimant to found an action based on such a trivial error. The Beavis v ParkingEye [2015] Judges at the Court of Appeal stated that in that case there was a commercial justification as it was free car park and the Claimant needed to prevent overstays of the free 2 hour stay. Whereas in this case the car park is a Pay and Display car park where revenue is earned from the purchase of tickets for an agreed period of time.

8.4 The Claimant has claimed a £50 legal representative’s cost on the claim form, despite being well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. The Defendant also has the reasonable belief that the charges have not been invoiced and/or paid and that due to the sparse particulars the £50 claimed for filing the claim has not been incurred either. This appears to be an attempt at double recovery as a way to inflate the value of the claim. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.

8.5 The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; “JUDGMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS”.. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

8.6 The Defendant denies that the Claimant is entitled to any interest whatsoever

9. The Defendant invites the court to consider this matter a trifle; the Defendant has acted in good faith; made reasonable endeavours to adhere to the terms of a pay and display contract and the Claimant has suffered no actual loss. In plain language, the Claimant has spent 10 months aggressively seeking extravagant sums for a presumed failure to display a £4 parking ticket; evidence for the purchase of which it has never contested.

9.1. The Defendant requests the court use its case management powers to strike the claim out as the Claimant has failed to provide basic details about its claim; is seeking an extravagant and unconscionable penalty and is automating it’s use of the court process against the public interest to intimidate and harass those acting in good faith.


I believe that the facts stated in this defence are true.

Redx

mmmm , if you had read any recent court claim threads carefully (including the concise defence by BARGEPOLE) you would know that its merely DEFENCE , no statement after the word defence in the opener

so just

DEFENCE

Coupon-mad

Defence [STRIKE]Statement[/STRIKE]

I haven't read the whole thing yet but remove this entirely as it adds nothing:

3. The Defendant requests the court strike out the claim for want of a cause of action and disregard of pre-court protocol.

3.1 Alternatively, the Defendant asks that court makes an order requiring the Claimant to file compliant Particulars, to include at least the following;
a) Whether the claim is for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
b) A copy of any contract it is alleged was entered into and how (e.g. copies of signage)
c) Whether the Claimant is acting as Agent or Principal, together with documents they rely on in having standing to bring this claim
d) If charges over and above the initial charge are being claimed, the basis on which this is being claimed and calculated
e) If Interest charges are being claimed, the basis on which this is being claimed

3.2 Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.