Penalty Charge Notice issued at Sennen Cove Beach car park for not displaying a valid ticket

KeithP

69jase, you keep on refreshing your view of this thread, but are you going to answer Redx's question?

Coupon-mad

We need the date of issue from your N1, to put you right on your deadline to defend, which has nothing to do with the date you do the AOS (as long as you just do the AOS!).

69jase

The date of issue from the N1 (County Court Claim) form is 3rd May. KiethP ... is this what you meant by answering RedX's question? By 'refreshing my view', do you mean updating the situation?

I downloaded the guide to MCOL and how to acknowledge service and also started to look at example defences last night.

Many thanks.

69jase

sorry ... meant to attached.

KeithP

69jase wrote: »

The date of issue from the N1 (County Court Claim) form is 3rd May.

With a Claim Issue Date of 3rd May, you have until Wednesday 22nd May to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Wednesday 5th June 2019 to file your Defence.

That's a whole month away. Loads of time to produce a perfect Defence, but don't leave it to the last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

69jase

Many thanks again.

Submitting the AoS via MCOL seems straight forward so I’ll get onto that. I intend to have a draft of my defence this week and then post for feedback? I’m just reviewing the various defence examples to assist me with articulating for my specific case; based on the essence of my initial forum posting.

Coupon-mad

Happy to give you feedback and support you throughout all the next stages.

69jase

Can you direct me to any defence examples that are related more to the nature of my case, i.e. contravention through an incorrectly displayed ticket, as the majority of the examples relate to such things as poor signage/markings?


Many thanks.

Coupon-mad

Search the forum every time you want to find something! I'd suggest the keywords:

defence fluttering ticket

69jase

I have now completed the AoS (very straight forward). In addition, I have also pulled together a first draft of my defence using the various relevant forum threads, which I have included below to hopefully receive some initial feedback at this stage.
One aspect that I have omitted to include, but which some other defence examples have, is regarding flimsiness of the ticket, as the ticket is the kind with adhesive on the back; therefore I feel that this should not be included as part of my defence?
I have included an aspect on poor signage, but I need to check this is accurate. In addition, it is a very first draft, therefore I also need to ensure that the ‘Preliminary Matters’, in particular are relevant in my case.
Although I have received the County Court Claim, BW Legal continues to correspond through text, email, and telephone calls; contacting me the day before I received the CCC, on the day of receipt and have continued since (I assume this is further scare tactics!).

Many thanks again.

In the County Court
STATEMENT OF DEFENCE
Claim no. xxxxxxxx
Claimant: KBT Cornwall Limited
Defendant: xxxxxxx

Particulars of Claim
The Claimant’s Claim is for the sum of £XXX.XX being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice (PCN) for a parking contravention which occurred on XX/XX/XXXX in the private car park/land located at Sennen Beach Car Park, Sennen, TR19 7BT in relation to a [vehicle type and model] registration mark XXXXXXX. The driver of the vehicle was allowed 28 days from the PCN issue date to pay the PCN, but failed to do so. Despite demand having been made, the Defendant has failed to settle their outstanding liability. The CLAIMANT CLAIMS £100 for the PCN, £60.00 contractual costs as set out in the Terms and Conditions, together with Statutory Interest of £X.XX pursuant to section 69 of the County Courts Act 1984 at 8.00% per annum.
DEFENCE
Preliminary matters
1. The Particulars of Claim do not meet the requirements of Practice Direction 16 7.5
1.1 The claim particulars fail to specify how the terms of parking were breached and fail to fulfil CPR Part 16.4 by not including a statement of the facts on which the claimant relies, only referring to parking charges incurred with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence; 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 which arise from an automated template, 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 valid parking ticket was taken from the dashboard of the car and shown to the Parking Patrol Officer after they had affixed the PCN to the window. The Defendant subsequently appealed the PCN on XX/XX/XXXX explaining what had happened and included a photographic copy of the front and back of the ticket displayed on the day. The serial number on the front and back of the ticket in the defendant’s photo, in fact, matching the serial number on the claimant’s photo of the reverse side of the ticket: XXXXXXXX. On both accounts, this provided 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 The above constitutes a direct breach of Practice Direction pre-action conduct and protocols; specifically - paragraph 3 (Objectives), and 8 (Settlement and ADR). As such the court's attention is drawn to paragraphs 13 - 16.
2.3 The above 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 judges in the Beavis Case.
3. On the basis of the above, 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 the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
a) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
b) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
c) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
Note: a SAR request was submitted to the claimant, although the Claimant did reply, this particular request was not acknowledged: ‘evidence of a payment to a debt collector/legal team (BW Legal) re: £60 addition to the PCN’.
d) 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. I am X, the Defendant, and both the authorised registered keeper and driver in question at the time of the alleged incident.
5. The Defendant denies liability for the entirety of the claim for the following reasons:
5.1 A valid ticket was paid for and displayed so all details could be seen, and was in place the right way up prior to the car being locked and left parked. The Defendant has no knowledge of the point at which the ticket flipped over or why, but made reasonable endeavours, and complied by conduct.
5.2 The Defendant cannot be responsible for the possibility that:
a) A gust of wind may have later moved the ticket from sight, despite the windows being shut and the doors being locked.
b) The employee of the Claimant may have caused the ticket to move, perhaps accidentally when leaning across the car or pushing between vehicles. No suggestion of foul play is intended.
c) A passer-by may have leaned on the car to get to their own vehicle or nearby offices.
5.3. None of the above scenarios are within a driver's control (The driver 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.
5.4 The Defendant showed the Parking Patrol Officer within 2 hours of the issue of the PCN the valid ticket from the Defendant’s car dashboard, but they refused to cancel the PCN.
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 the consumer must be given the benefit of the doubt.
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 say display the ticket face-up then they should have drafted clear terms to that effect.
5.7 It is not disputed that the ticket gave the Defendant a licence to park for the entire day. The ticket was displayed on the dashboard at all times. This will be demonstrated by the Claimant’s own evidence.
5.8 The Claimant’s evidence will show the back of the ticket has a serial number of XXXXXXXX. The Defendant’s evidence will also show the front and back of the ticket has the same serial number of XXXXXXXX. Furthermore, the Defendant’s evidence will also show that the front of the ticket also displays the last 3 letters of their registration number.
5.9 The Defendant’s evidence will also show that a valid ticket was purchased via Credit Card.
5.10 The Defendant asserts that it is reasonable for a consumer to believe that the terms which specify the main subject matter of the contract are those emphasised as terms and conditions on the signage in red, bulleted text, given the distinct formatting and semantics. The term that ‘Retrospective evidence of authority to park will not be accepted’ does not specify the main subject matter of the contract. It cannot therefore be excluded from an assessment of fairness per Section 64(1) of the CRA 2015.
5.11 The terms on the Claimant's signage were also displayed in a font and colour combination which was too small and difficult to be easily read. It was also 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 to pay a penalty charge, which as never communicated adequately, nor accepted by conduct. Whilst the tariffs per hour were in the largest font, any penalty was hidden in small print and nothing alerting drivers to a possible additional £100 was displayed by way of 'contract' at the PDT machine, which was the point of sale.
6. The Claimant has failed to establish their 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.
Claimant is seeking a penalty and inflated costs
7. The Claimant seeks £160 which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown they 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.
7.1 The Claimant is under a duty to mitigate its loss. It failed to do so by ignoring the information available from the Defendant having provided details of a valid ticket having been purchased that would have enabled it to establish that the Defendant was parked legitimately.
7.2 £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. The defendant lodged a SAR request to the claimant requesting: ‘evidence of a payment to a debt collector (BW Legal) re: £60 addition to the PCN’. However, no such evidence was provided.
7.3 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 there was a commercial justification as it was free car park and 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 gained as people need to pay to park there for an agreed period of time.
7.4 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.
7.5 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”. These were presumably the £25 filing fee and £25 hearing fee. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.
7.6 I deny the Claimant is entitled to any interest charges.
8. The Defendant invites the court to consider this matter a trifle; the Defendant has acted in complete good faith; made reasonable endeavours to adhere to the terms of a contract and the Claimant has suffered no actual loss. Therefore, the Claimant has spent X months aggressively seeking extravagant sums for a presumed failure to display a valid parking ticket; evidence for the validity of which has never been questioned.
8.1. 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 its use of the court process against the public interest to intimidate and harass those acting in good faith.

Statement of Truth
I believe that the facts stated in this defence to be true.

Printed Name

Signed Dated