BW Legal Armtrac Sennen car park

Husqvarney

Oh and thanks Coupon Mad about the 'Armtrac fluttering flimsy ticket' I'd read the daffodil11 post before and some of the Jinxycat one. I'll come back to the latter as it may have contents that will help me later.

Husqvarney

Okay to follow up I've had the SAR from Armtrac. On 23rd Jan 2019 they have e-mailed the photos of the car and ticket and one supposedly a close up of the notice. The small red print of which you can't read in the photo. They say no further notes where taken by the patrol officer and that 'Armtrac do not pay debt collectors'. They have sent a copy of the 'final letter before debt recovery or court action' and the 'notice to keeper'. They said that regarding a record of payments made to the pay and display machine that they 'do not retain this information and if they did they would not have access to it' (weird wording).

I have also today 30th Jan received a letter dated 28th Jan from BW Legal saying 'We are not of the view that the right to restrict processing is applicable in this case. Your data is processed for the lawful purposes set out in the Privacy Notice.' Which was attached all 13 pages.

I guess I'm still waiting for the actual claim....

nosferatu1001

Youcould now respond to the LoC and ask for the contract, pictures of signage etc, and state that unless they are in the habit of taking instruction without seeing any documents they should have these already - as such you need them within 7 days

This is to narrow the topics under dispute and to meet the overriding objectives of the court, which you are required to follow as officers of the court. Unreasonable refusal will be noted and presented.

Husqvarney

Do you mean for me to ask for a clear picture of the signage? Obviously it won't be of the signage on the day. To which contract are you referring?

nosferatu1001

Landowner contract
You ask for wha tthey contend to be pictures of the contract on offer, ie the signs on the day.

Yes, seriously - all in the newbies thread

Husqvarney

I have a clear photo of the signage but not from BW Legal or Armtrac, I found it on this forum and its is for Sennen Cove car park a half mile away that Armtrac also operate. It looks identical to the blurry photo that Armtrac sent me via the SAR.

I now have the Claim Form issue date 3rd May 2019 and have completed the Acknowledgment of Service.

I've prepared a defence statement below and based on Jinxycat's one and altered it to suit my case. Comments gratefully received.

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

1. I am the defendant in this matter.

2. It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the Defendant denies that he is liable to the Claimant either as alleged in the Particulars of Claim or at all. Each and every allegation in the Particulars of Claim is denied.

3. The Claimant has no cause of action against the Defendant on the following grounds:

4. A ticket was paid for and displayed so all details could be seen. The Defendant has no knowledge of what happened to the ticket after he left the vehicle. The ticket gave the Defendant permission to park for the entire day, from 11:44am on xx/xx/17, covering the time and date relating to the disputed charge. The ticket was marked with the reference xxxxxxxx on the rear of the ticket, which will be demonstrated by the Claimant’s own photographic evidence.

Non-disclosure of reasonable grounds or particulars for bringing a claim
5. The Claimant has not complied with the pre-court protocol and has not disclosed reasonable grounds for bringing a claim.

6. The Particulars of Claim fail to fulfil 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 description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:
The Claimant claims:
‘The Claimant’s claim is for the sum of £172.30 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/2017 in the private car park/land located at Sennen Top Car Park, Sennen TR19 7BT in relation to a Honda Crv registration mark XXXXXXX…..
…The claim also includes statutory interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8% per annum (a daily rate of £0.02 from XX/XX/2017 to 02/05/2019) being an amount of £12.30.
The claimant also claims £60.00 contractual costs as set out in the Terms and Conditions.’
Total debt and interest £172.30.

7. The Particulars of Claim provide no information regarding why the charge arose, what the original charge was, what the alleged contract was, whether the claim is brought for breach of contract or trespass, nor anything which could be considered a fair exchange of information. The Claimant’s solicitor has not stated on the claim form that particulars of claim will follow.
The Claimant's solicitor is known to be a serial issuer of particulars of claim which arise from an automated template, with no due diligence, and is believed to be the subject of an active investigation by the Solicitors Regulation Authority. The Defendant argues that the Claimant's conduct in pursing consumers through the small claims courts, using an automated system is against the public interest and not something the courts should be seen to support.

8. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), 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''. The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’

Failure to comply with the procedural requirements of POFA 2012
9. No evidence has been supplied by the Claimant as to who parked the vehicle. The Defendant did not wish to, and was under no legal obligation to, provide the name of the driver to the Claimant. The Defendant also did not expressly advise the Claimant of his status as either driver or keeper in communication as he was not aware of the significance of the distinction, or the procedural implications.

10. Keeper liability has not passed in accordance with Protection of Freedoms Act 2012 Schedule 4 (also referred to as PoFA). For the Claimant to recover the parking charge from the Defendant, the Claimant must have followed the strict requirements in the PoFA 2012 Schedule 4, which provides that liability can be transferred from driver to keeper. The Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. This distinguishes the case from Elliott v Loake [1982] in which there was irrefutable evidence of the driver’s identity. PoFA 2012 Schedule 4 has not been complied with and the claimant may not quote reasonable assumption. In the case of Excel v Mr L. (17/11/2016, Skipton), the judge dismissed the claim, summing up that: neither the claimant could prove the defendant was the driver, which they could not; or the claimant could comply with PoFA to pursue the defendant as the keeper, which it was proved they did not. In POPLA’s ‘Annual Report of the Lead Adjudicator 2015’, on ‘Understanding Keeper Liability’, the expert opinion of PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, was that:
‘However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant.’

11. A Notice to Keeper was not sent in time. The Claimants failure to comply with the procedural requirements of POFA 2012 means that the registered keeper cannot be held to account for the alleged debt of the driver. Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper:
(Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
The date of the alleged Parking Charge Notice was XX/XX/2017; to comply the latest date of which the Notice to Keeper should have been sent was XX/XX/2017. The Notice to keeper date of sending is XX/XX/2017. As such, the Defendant has no liability in law and the court is invited to strike out this claim with immediate effect.

No invitation to park on certain terms
12. A contract was never formed. There was never a contractual relationship, whether categorised as a licence or some form of contractual permission, because the signage does not offer an invitation to park on certain terms. The terms are forbidding, per C5GF17X2, Guildford County Court, heard by Judge McCulloch, citing Arrale v Costain Civil Engineering Ltd [1976] 1 Lloyd’s Rep 98:
‘…in this case there is no evidence of a true accord at all. No one explained to [the plaintiff] that he might have a claim at common law. No one gave a thought to it. So there cannot be an agreement to release it. There being no true accord, he is not barred from pursuing his claim at common law.’

Consumer Rights Act (CRA) 2015 – Unfair Terms
13. Even if a contract had been formed it would be void, or in the alternative the following terms are either not transparent or are unfair, and these terms are not binding on the consumer, for the following reasons. Section 71 of the Consumer Rights Act 2015 provides that the Court has a duty to consider the fairness of the terms.

14. The term, 'Vehicles must fully display a valid pay and display ticket in the front windscreen so all details can be inspected', in particular the meaning of 'fully display' and 'all details', 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. A valid ticket was displayed in the front windscreen of the Defendant’s vehicle and a ticket reference was clearly visible. If the Claimant wanted to impose a term to continuously display permits, then they should have drafted clear terms to that effect. Fluttering ticket cases have been ruled by PATAS adjudicators in Council PCN adjudications as requiring specific terms to 'continuously display' or there is no contravention. The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

15. Although unclear in the photograph of the signage at the car park subsequently provided by the Claimant it is understood by online research to similar signage at the Sennen Cove car park also operated by Armtrac that their terms and conditions states:
'Vehicles must fully display a valid pay and display ticket in the front windscreen so that all details can be inspected’. It does not say which side is to be displayed as both sides have information on. Further No signs or terms required the use of adhesives to affix the ticket to the window, the term to display a ticket ‘in the front windscreen’ does not require the use of adhesive to affix the ticket. Furthermore, the requirements for displaying a ticket upon which the Claimant rejected the appeal, cannot be incorporated as the contract was already concluded, per Lord Denning in Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163:
‘[T]he offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot. The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise. He is not bound by the terms printed on the ticket if they differ from the notice, because the ticket comes too late. The contract has already been made.’

16. I include the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' in my defence, because the Supreme Court (and the Court of Appeal Judges) in Beavis were happy to draw similarities with Council PCNs:

‘In DB05057D the adjudicator said: “…having seen the original ticket I note that it is made of rather thin paper which is likely to be dislodged when a car door is shut. It may be that the Council would argue that it is the driver's responsibility to ensure that the ticket is on display when the vehicle is left, but on the other hand if it chooses to issue pay and display tickets made of such thin paper it must expect that now and again this type of situation will arise.”
In HV05040D the adjudicator accepted the appellant’s evidence that she had displayed the ticket on the dash and checked after closing the door that it was still there. He said: “I am not aware of any signs in the car park suggesting the use of adhesives by motorists when parking their cars."’

17. In this case 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.

18. The term that ‘Retrospective evidence of authority to park will not be accepted’ falls within the 'grey list' of terms which may be regarded as unfair under Schedule 2 Part 1 of the CRA 2015, paragraph 20 (referred to in Section 63(1) of the CRA 2015), as it restricts the evidence available to the Defendant to defend the charge. It raises a presumption that the term is unfair.

19. The meaning of the term is unclear. It is not clear what is meant by 'retrospective evidence' in this context. It does not specify in what context any evidence of authority to park would not be accepted, whether on appeal or in any other circumstance. Section 69 of the CRA 2015 provides for the application of the contra proferentem rule and the Defendant invites the Court to take this into account when determining the fairness of the term.

20. This term is not prominent on the signage. In addition, the statement that ‘By parking and remaining on this land, you the driver, accept liability to pay the parking charge for any failure to comply with the terms and conditions contained within this sign’, is not prominent. It was held in Thornton v Shoe Lane Parking Ltd that the terms of the offer can only be those those placed near the machine, sufficiently brought to the customer's attention.

21. Furthermore, to exclude evidence makes it an unfair term, in that it creates a significant imbalance, contrary to the requirements of good faith, to the detriment of consumers. It was held in Munkenbeck & Marshall v Harold [2005] EWHC 356 (TCC), [2005] All ER (D) 227 (Apr) that where a term is one-sided and its terms have not been sufficiently drawn to the attention of the consumer, the term is more likely to be held to be an unfair term.

22. Section 62(1) of the Consumer Rights Act 2015 establishes that an unfair term of a consumer contract is not binding on the consumer. In the event that the Court decides this is a consumer notice rather than a contract, Section 62(2) applies. The Defendant invites the Court to rule accordingly.

Locus standi
23. The Claimant has no standing to bring this claim, or in the alternative the doctrine of privity applies and the Claimant is not privy to a contract that is between the landowner and the defendant. The proper Claimant is the landowner. In previous requests for information, the Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. The Defendant has reasonable belief that a statutory assignment has not taken place, therefore per Viscount Haldane’s judgement in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, the Claimant may only sue on the contract as an agent if consideration has been given by the landowner personally or through the Claimant acting as agent; no such consideration flows as the Claimant does not receive payment from the landowner to manage the site in the landowner’s commercial interest, does not receive any proceeds from the sale of tickets, and does not offer parking as consideration for the Defendant’s payment for a licence to park. The Claimant’s business model is solely driven by the recovery of penalty fees. Strict proof is required that there is an assignment of contractual rights leading from the landowner to KBT Cornwall Ltd T/as Armtrac Security Services. The Defendant has reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they 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. The Defendant also has reasonable belief that the tests of enforceability for the Contracts (Rights of Third Parties) Act 1999 have not been met. The Claimant has failed to establish an express conferral pursuant to section 1(1)(a) and section 1(3), which requires precise terms which identify the Claimant, and which expressly state that the Claimant has the ‘right to enforce the contract’ or the ‘right to sue’, or even to demonstrate an implied conferral per section(1)(1)(b) and section 1(3), which requires a term to expressly confer a benefit on the Claimant and for the Claimant to be specifically named, noting that it is not a benefit if the Claimant’s position is merely improved if the contract is performed (A Burrows, ‘The Contracts (Right of Third Parties) Act 1999 and its implications for commercial contracts’ [2000] LMCLQ 540, 542-546). Furthermore as per Trendtex Trading Corporation v Credit Suisse [1982] AC 679, a mere right to sue for damages is not assignable unless the assignee has a genuine commercial interest in taking the assignment; and Lords Neuberger and Sumption’s judgement (at [25]), in Parking Eye Ltd v Beavis [2015] UKSC 67, shows 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.

Trespass
24. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. In the event that a trespass claim is brought by the Claimant, the Defendant parked on land where parking was invited and paid for full authority to park, and did not overstay. Trespass cannot therefore apply. Furthermore, the Defendant has reasonable belief that the Claimant does not have a contractual or proprietary right to occupy or possess the car park per Hill v Tupper [1863] 2 H & C 121; the landowner has not assigned rights to enable the Claimant to pursue a case under the tort of trespass. In any event, the Defendant’s sole liability would be damages in favour of the landowner. Per the Supreme Court in the case of Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case), trespass is limited to the landowner themselves claiming for a nominal sum.

Applicability of ParkingEye Ltd v Beavis [2015] UKSC 67
25. The Claimant might argue that the Supreme Court’s landmark decision in the Beavis case is applicable.

26. This case is not supported by any similarity in the circumstances or signage. Mr Beavis refused to pay a charge of £85 for overstaying a permitted period of free parking in a car park at a retail park. The signs displaying this information were accepted to be large, prominent and legible. The notice stated ‘2 hour max stay… Failure to comply … will result in a Parking Charge of £85.’ Mr Beavis exceeded the time limit by one hour but declined to pay the charge and maintained the term which sought to impose the charge was an unfair term. The Beavis case does not assist the claimant and in fact, supports my defence.

The agreed damages clause is a penalty
27. The signage provides for a parking charge of £100 if the terms and conditions of parking are breached. The Claimant seeks £172.30 which is an extravagant and unconscionable penalty, and therefore unenforceable.

28. In ParkingEye Ltd v Beavis the Supreme Court recast the test to be applied when seeking to distinguish a liquidated damages clause from a penalty clause. To engage a penalty the question was whether the relevant provision was “unconscionable” or “extravagant” (Lord Hodge at [221]). The full test was expounded by Lord Hodge (at [255]).

29. The Supreme Court was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield). The charge to the Defendant of £172.30 is evidently extravagant and unconscionable in that it is disproportionate to the Claimant’s interest, and disproportionate to the highest level of damages that could possibly arise from the Defendant’s alleged breach of contract.

30. The Defendant therefore disputes the amount claimed, as it comprises excessive and non-contractual elements, and additional costs must be proved. With reference to paragraph 27, the Claimant claims a sum of £172.30 as a ‘parking charge’ (for which liability is denied), which includes £60 that the claimant has untruthfully presented as contractual charges, which amounts to double charging.

31. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge before a Notice to Keeper is issued. In any event the Protection of Freedoms Act is clear that a vehicle keeper would only be liable for the amount of the penalty charge notice, and no further costs.

32. 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. The Defendant also has a good faith belief that due to the sparse particulars the £50 claimed for filing the claim has not been incurred. This appears to be an attempt at double recovery as a way to inflate the value of the claim. The solicitor has been incompetent and is not due £50. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.

33. Furthermore, the Claimant claims interest from XX/XX/17. The disputed charge was due to be paid within 28 days of the date of issue of the notice. Interest should therefore not be claimed until XX/XX/2017, when the disputed charge was due.

34. The Claimant claims interest but there is no specific mention of interest being charged given in the terms and conditions on the car park notice. No interest should therefore be charged.

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

Statement of Truth
36. I believe that the facts stated in defence are true.
Dated this 8th day of May 2019

If you good guys are happy with the defence above I will send it off with the defence form N9B via registered post and crack on with the witness statement. Then wait for the next forms to drop in the post.
Cheers

Coupon-mad

That is extremely long. Too long.

Have another look at the examples of CONCISE defences in the NEWBIES thread instead.

Also, someone else has just posted this afternoon a defence about a flimsy non-sticky ticket and theirs is quite a bit shorter than yours:

https://forums.moneysavingexpert.com/discussion/comment/75790299#Comment_75790299

#9 about 'no keeper liability' is hopeless if you've said this earlier in the defence!

after he left the vehicle. The ticket gave the Defendant permission to park for the entire day,

You need to decide right now, are you defending this at the hearing as the driver?

I would, if you were, and not try to hide behind the POFA that muddies the waters of your real defence.

KeithP

Husqvarney wrote: »

I now have the Claim Form issue date 3rd May 2019 and have completed the Acknowledgment of Service.

With a Claim Issue Date of 3rd May, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Wednesday 5th June 2019 to file your Defence.

That's nearly 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.

Husqvarney

Thanks for the replies. Here is take two...

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

1. It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the Defendant denies that he is liable to the Claimant either as alleged in the Particulars of Claim or at all. Each and every allegation in the Particulars of Claim is denied.

2. A ticket was paid for and was clearly displayed so all details could be seen. The Defendant has no knowledge of what happened to the ticket after he left the vehicle. The ticket gave the Defendant permission to park for the remainder of the day, from 11:44am until 23:59pm on xx/xx/17, covering the time and date relating to the disputed charge. The ticket was marked with the reference ‘xxxxxxx’ on the rear of the ticket, which will be demonstrated by the Claimant’s own photographic evidence which corresponds to the same number on the face of the ticket.

3. The ticket has flipped or blown over after the driver left the vehicle, perhaps by strong winds through air vents. This ‘force majeure’ was caused by severe weather outside the control of the driver and not something which should be a matter for either party to be bound by, nor for either party to benefit from, in terms of any 'charge' or penalty.

4. The Particulars of Claim fail to fulfil 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 description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence. The Particulars of Claim provide no information regarding why the charge arose, what the original charge was, what the alleged contract was, whether the claim is brought for breach of contract or trespass, nor anything which could be considered a fair exchange of information. The Claimant’s solicitor has not stated on the claim form that particulars of claim will follow. In C3GF84Y (Mason, Plymouth County Court), 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''.

5. A Notice to Keeper was not sent in time. The Claimants failure to comply with the procedural requirements of POFA 2012 means that the registered keeper cannot be held to account for the alleged debt of the driver. Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper:
(Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver;
The date of the alleged Parking Charge Notice was xx/xx/2017; to comply the latest date of which the Notice to Keeper should have been sent was xx/xx/2017. The Notice to keeper date of sending is xx/xx/2017. As such, the Defendant has no liability in law and the court is invited to strike out this claim.

6. Even if a contract had been formed it would be void, or in the alternative the following terms are either not transparent or are unfair, and these terms are not binding on the consumer, for the following reasons. Section 71 of the Consumer Rights Act 2015 provides that the Court has a duty to consider the fairness of the terms.

7. Although unclear in the photograph of the signage on the day at the car park subsequently provided by the Claimant it is understood by online research to be similar signage at the Sennen Cove car park also operated by Armtrac that their terms and conditions states:
'Vehicles must fully display a valid pay and display ticket in the front windscreen so that all details can be inspected’. It does not say which side is to be displayed as both sides have information on. Further no signs or terms required the use of adhesives to affix the ticket to the window, the term to display a ticket ‘in the front windscreen’ does not require the use of adhesive to affix the ticket. Furthermore, the requirements written on the ticket for displaying it cannot be incorporated as the contract was already concluded, per Lord Denning in Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163:
‘The offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot. The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise. He is not bound by the terms printed on the ticket if they differ from the notice, because the ticket comes too late. The contract has already been made.’

8. A valid ticket was displayed in the front windscreen of the Defendant’s vehicle. If the Claimant wanted to impose a term to continuously display tickets, then they should have drafted clear terms to that effect. Fluttering ticket cases have been ruled by PATAS adjudicators in Council PCN adjudications as requiring specific terms to 'continuously display' or there is no contravention. The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties.

9. The views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' are included in this defence, because the Supreme Court (and the Court of Appeal Judges) in Beavis were happy to draw similarities with Council PCNs: In DB05057D the adjudicator said: “…having seen the original ticket I note that it is made of rather thin paper which is likely to be dislodged when a car door is shut. It may be that the Council would argue that it is the driver's responsibility to ensure that the ticket is on display when the vehicle is left, but on the other hand if it chooses to issue pay and display tickets made of such thin paper it must expect that now and again this type of situation will arise.”. In HV05040D the adjudicator accepted the appellant’s evidence that she had displayed the ticket on the dash and checked after closing the door that it was still there. He said: “I am not aware of any signs in the car park suggesting the use of adhesives by motorists when parking their cars."’

10. In this case 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.
12. 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.

13. 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.

14. 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 £100 is for breach of contract. The claim includes an additional £60 in contractual costs and £12.30 statutory interest, also for breach of contract, which appears to be an attempt at double recovery. Added costs/damages were also deemed unrecoverable in the Supreme Court case of Beavis, which allowed only the parking charge itself (£85) due to compelling facts about clear signs, a legitimate commercial interest and deterrent value in encouraging turnover of spaces. None of this applies to this claim, which is wholly meritless due to the Claimant's failure to similarly disengage the penalty rule.

15. The Claimant has claimed a £50 legal representative’s cost on the claim form, despite CPR 27.14 not permitting such charges to be recovered in the Small Claims Court. The Defendant also has a good faith belief that due to the sparse particulars the £50 claimed for filing the claim has not been incurred. This appears also to be an attempt at double recovery.

16. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

Statement of Truth
I believe that the facts stated in defence are true.
Signature: Dated this 8th day of May 2019


Does that look better?

Coupon-mad

Apart from admitting that the car was parked at the location, each and every allegation in the Particulars of Claim is denied.

Remove #5 entirely - you cannot argue 'no keeper liability' as an admitted driver.

Swap these sentences in #6 round, so it ends with 'the following reasons':

6. Even if a contract had been formed it would be void, or in the alternative the following terms are either not transparent or are unfair, and these terms are not binding on the consumer, for the following reasons. Section 71 of the Consumer Rights Act 2015 provides that the Court has a duty to consider the fairness of the terms.

And add the bit in red here:

12. 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.