Fluttering ticket court defence

COH

Hi everyone

I am a newbie and this is my first time contesting a parking ticket.

I have just received a county court claim from Gladstones solicitors about a parking ticket I received at the same pay and display parking site that Claxtome did. (post75179106)

Unfortunately my ticket fluttered all the way to the floor so was not visible at all on the dashboard. I did however enter my vehicle registration into the machine and I purchased a full days parking. I have drafted my defence using a modified version of Claxtome's final edit (that I think includes all your helpful comments and suggestions). Can I post my draft here for your help? I have completed my acknowledgement of service on line so have 28 days to submit my defence.

Many thanks

Fruitcake

By all means post a redacted draft defence.

Have you seen this?

http://parking-prankster.blogspot.com/search?q=sticky

"The judge dismissed the claim. He ruled that it was the responsibility of the parking company to provide sticky backed tickets and that he had already thrown out 6-10 of these type of cases which Link Parking had brought."

Also bear in mind that a person or persons unknown could have deliberately bounced up and down on the car with malice aforethought.

COH

thank you Fruitcake, I have now added in the reference to the port talbot case

here is my defence so far

Defence Statement

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, with no due diligence. Research indicated they are the subject of an active investigation by the Solicitors Regulation Authority.

1.3 1.1 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.

1.5 There are other similar examples which could be produced.

2 The Defendant appealed the postal Parking Charge Notice on the 03/12/2017 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 The appeal was rejected on the 14/12/2017 and the Defendant subsequently appealed to the Independent Adjudicator on 15/12/2017 which was also dismissed.

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) 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.

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

5.1 The Defendant paid and displayed a ticket so all details could be seen. The ticket was made of very flimsy paper, and was, to the full knowledge of the Defendant at the time, 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 moved out of sight or why, but made all 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 flimsy paper from sight, despite the windows & doors being locked.
b) The employee of the Claimant may have caused the ticket to move from sight, 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, when squeezing between the small bays to get to their own vehicle.

5.3 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.

5.4 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). Several similar court cases have been previously dismissed on the basis that it is deemed by the judge to be the responsibility of the parking company to provide sticky backed tickets (e.g. C8GF30W7 Link Parking v Mr H. 14/11/2016 Port Talbot)

5.5 The parking ticket purchased was acquired by entering the vehicle registration number into the ticket machine. Therefore the Claimant had a full record of full parking payment having been made for the parked vehicle without the ticket being visible on the dashboard.

5.6 The Claimant does not dispute that the Defendant purchased a ticket, that it gave a licence to park for the entire day. Other parking sites within the vicinity of this site all have ticket machines requiring the vehicle registration to be entered and do not require display of issued ticket.
5.7 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.

Limited contract
6 The signage on this site is inadequate to form a contract to pay £100 or any sum at all. It is barely legible, making it difficult to read and it is not believed that such terms were proclaimed with the tariffs at the machine. Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which the Claimant is a member), clearly obliges the Claimant to display legible signs in appropriate locations.

Locus standi
7 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.

7.1 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
8 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.

8.1 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
9 The Claimant seeks £160 which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown a valid ticket was purchased and the Claimant has suffered no loss, and because any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.

9.1 The Claimant is under a duty to mitigate its loss. It failed to do so by ignoring the information available from the Defendant having entered their vehicle registration number into the ticket machine that would have enabled it to establish that the Defendant had paid for a full day’s parking.

9.2 £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).

9.3 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.

9.4 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.

9.5 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.

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

10 The Defendant invites the court to strike out the claim for the above grounds.


I believe the facts stated in this defence are true.

KeithP

What is the Issue Date on your Claim Form?

The_Deep

It is the will of Parliament that these scammers be put out of business. Hopefully that will take place in the near future. The Bill has passed through the HOC without hitch, and goes to the Lords soon. In the meantime involve your MP, the poor dears are buckling under the weight of complaints about these scammers. Read this one which I wrote earlier

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Third Reading in late November, and, with a fair wind, will become Law next year.

All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.

COH

10th December 2018

COH

KeithP wrote: »

What is the Issue Date on your Claim Form?

thanks KeithP, its dated 10th December, I received it yesterday and acknowledged immediately

KeithP

With a Claim Issue Date of 10th December, and the Acknowledgement of Service done in a timely manner, you have until 4pm on Monday 14th January 2019 to file your Defence.

That's a month away. Loads of time to produce a perfect Defence, but don't leave it to the very 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 "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.

COH

KeithP wrote: »

With a Claim Issue Date of 10th December, and the Acknowledgement of Service done in a timely manner, you have until 4pm on Monday 14th January 2019 to file your Defence.

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



thank you for the advice. Seems loads of time but christmas is in the middle and having just finished cancer treatment I don't have a lot of energy at the moment.

I know I need to check the accuracy of the signage section to ensure that still applies (I just cut and paste that bit). Perhaps I dont need that section at all.

any comments on my first draft would be much appreciated. thanks in advance

COH

The_Deep wrote: »

It is the will of Parliament that these scammers be put out of business. Hopefully that will take place in the near future. The Bill has passed through the HOC without hitch, and goes to the Lords soon. In the meantime involve your MP, the poor dears are buckling under the weight of complaints about these scammers. Read this one which I wrote earlier

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Third Reading in late November, and, with a fair wind, will become Law next year.

All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.

two MP emails sent :-)

claxtome

No advertising consent for signage
8 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. hi

It is probably worth checking on the council website to see the current state of affairs with this.
I am not saying remove this paragraph just suggesting you check on the current planning applications for the site in case you need this info later...

Btw I have subscribed to your thread and will help where I can

Some questions which will help me and others help you:

1. Did you receive the PCN attached to the windscreen or through the post?
2. Have you admitted who was driving the vehicle in any correspondence?
3. Did you appeal the PCN?
4. Did you further appeal to IAS?