Excel Parking Services - Flipped Ticket

Le_Kirk

Try searching the forum for similar defences. I found this one from Claxtome, a bit long but you could read the relevant bits around fluttering ticket.

Tabz123

Hi there

Have a look at my thread 'ES Parking IAS'. I have recently written my defence on the same matter and had a lot of forum member feedback, especially from Coupon-mad. May prove useful to you.

Umkomaas

Tabz123 wrote: »

Hi there

Have a look at my thread 'ES Parking IAS'. I have recently written my defence on the same matter and had a lot of forum member feedback, especially from Coupon-mad. May prove useful to you.

https://forums.moneysavingexpert.com/discussion/5851168/es-parking-ias

jam1991

Worked on defence at the weekend and combined some points kindly supplied by Tabz123.
Please could I request comments and critique before signing and emailing tonight.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in a marked bay allocated to Company XXXX at XXXX Business Park, and had a valid permit to be parked in that bay.

3. The Particulars of Claim state that the Defendant; was the registered keeper and/or the driver of the vehicle(s);. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
4. 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.

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

6.The Defendant denies liability for the entirety of the claim for the following reasons:
6.1. 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. It seems from previous correspondence to be the Claimant's case - but not pleaded in the Particulars - that the Pay & Display ticket (PDT) was partially not visible on the windscreen.

6.2 When leaving the car parked, the Defendant ensured that the PDT was properly displayed. The Defendant cannot be responsible for 'continuous display' after that point, given that:
a) The PDT ticket supplied by the Claimant to a paying driver, is (either deliberately, or negligently) extremely flimsy with no sticky side to firmly attach to a windscreen or dashboard

b) A gust of wind may have later flipped the flimsy paper over, despite the windows & doors being locked.

c) The employee of the Claimant may have caused the ticket to move from the windscreen by leaning across and/or quickly passing between parked cars, causing air to flow through the windscreen air vents and/or causing the vehicle to move enough for the flimsy slip to dislodge from the dashboard, as has been the reported modus operandi of rogue parking firms in this industry.

6.3. 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.

6.4. 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).

7. 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.

8. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

9. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

10. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

11. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

12. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

13. 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 8 months aggressively seeking extravagant sums for a presumed failure to display a £3 parking ticket; evidence for the purchase of which it has never contested.

14. In summary, 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 its use of the court process against the public interest to intimidate and harass those acting in good faith.

I believe the facts contained in this Defence are true.

Name
Signature
Date

jam1991

Is anyone available to critique my defence before submitting please?

jam1991

Please could I get some critique on my defence.

MothballsWallet

Coupon-mad wrote: »

No but I noticed what a lot of red ink they use, with that 'DO NOT IGNORE' section looking desperate and scam-like. Looks even worse than their previous letters, what a mess.

And their office printer looks like it's running out of red ink (note the lines in the "DO NOT IGNORE" bit), perhaps that's why they're sending more of these out? There's no money in their budget for stationery at the moment?

jam1991

Submitted defence last night. MCOL is now showing:

Your acknowledgment of service was received on 27/02/2019 at 12:02:20
Your defence was received on 20/03/2019
DQ sent to you on 20/03/2019

I cannot see anywhere on MCOL that states the Claim is marked "defended"?

jam1991

jam1991 wrote: »

Submitted defence last night. MCOL is now showing:

Your acknowledgment of service was received on 27/02/2019 at 12:02:20
Your defence was received on 20/03/2019
DQ sent to you on 20/03/2019

I cannot see anywhere on MCOL that states the Claim is marked "defended"?

Please could someone advise on the above?

Coupon-mad

''Your defence was received on 20/03/2019''