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Claim Form Fluttering Ticket at Work Parking Space
Waster
Posts: 9 Forumite
Hello, I would appreciate any assistance or comments as I have received a Claim Form for a PCN and, reading through the Newbie threads and various related message board threads, I haven't played my hand particularly well so far!
Claim Form for County Court is dated 22nd Feb, Gladstones representing - as advised on newbies thread I have sent in AoS and SAR
Briefly; parking attendants fixed a PCN to my car when I was parked in a bay at work. I went to speak to them (along with a fellow witness) as they walked away and found that the 'valid permit' that allows me parking in the bays at any time had fallen from the dashboard. I immediately showed them the pass which I picked from the footwell of the car, but they refused to rescind the PCN. Both attendants had bodycams which they confirmed were working.
I did not take photos of the signage and they have been changed since the incident.
I sent in an appeal almost immediately via the PPC website appeals process. I received no reply.
I next received a 'Final Reminder' (35 days after issue of the PCN) stating that the registered keeper was liable for the parking charge and inviting payment of £100 and stating that a Notice to Keeper had previously been served (I did not receive a Notice to Keeper).
I emailed PPC again, explaining the full position and inviting them to confirm receipt of my appeal and to show reason and rescind the PCN. Again, no reply.
3 months later I received a 'Letter Before Court Action' in which the charge amount had, without explanation, risen to £160.
I emailed PPC again and again got no reply.
3 months later i received an LBC from Gladstones.
I again emailed PPC and got no reply.
I now receive a Claim Form. The Particulars of Claim state where and when the incident occurred but not how the driver breached the terms of signage.
I understand now that I've made mistakes in how I've responded so i want to get my Defence right
I post below a draft Defence but I'm unsure whether it is also worth pursuing a line that they have not asked me to identify the driver (I identify myself in email responses as the person who was with the car when the ticket was issued but at the time I was recovering from illness and, at times I was driven by my wife and other family members while I was recovering, it could be that on the day in question they dropped me off at work and left the car parked in a bay for me, with me as a passenger)?
(Please ignore the numbering, I will sort this out later!):
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 serial litigants and issuers of speculative claims, using “template” particulars of claim, with no due diligence.
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.
2 The Defendant appealed the Parking Charge Notice on the (date of issue) 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 not responded to; a pattern of behaviour that the claimant repeated time and again despite repeated attempts by the defendant to engage.
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) The basis on which charges over and above the initial charge are being claimed and calculated
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
5 The Defendant denies liability for the entirety of the claim for the following reasons:
5.1 The Defendant displayed a permit 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 permit from sight, despite the windows & doors being locked.
b) The employee of the Claimant may have caused the permit 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 to get to their own vehicle or nearby offices.
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.
5.5 The permit was taken from the footwell of the car by the Defendant and shown to the parking enforcement officers when they were still at the scene. The two officers were wearing bodycams at the time, which they confirmed were in use. This occurred in the presence of a witness. The Claimant had a full record of the Defendant having a valid parking ticket for the time at which the PCN was issued without the ticket being visible on the dashboard.!
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.
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.
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 themselves to be in possession of 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 information available from the Defendant having provided details of a valid permit that would have enabled it to establish that the Defendant was parked legitimately.
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 an office car park where revenue is earned from the payment for parking spaces by tenants of the offices and buildings to which it serves.
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 strike out the claim for the above grounds.!
Claim Form for County Court is dated 22nd Feb, Gladstones representing - as advised on newbies thread I have sent in AoS and SAR
Briefly; parking attendants fixed a PCN to my car when I was parked in a bay at work. I went to speak to them (along with a fellow witness) as they walked away and found that the 'valid permit' that allows me parking in the bays at any time had fallen from the dashboard. I immediately showed them the pass which I picked from the footwell of the car, but they refused to rescind the PCN. Both attendants had bodycams which they confirmed were working.
I did not take photos of the signage and they have been changed since the incident.
I sent in an appeal almost immediately via the PPC website appeals process. I received no reply.
I next received a 'Final Reminder' (35 days after issue of the PCN) stating that the registered keeper was liable for the parking charge and inviting payment of £100 and stating that a Notice to Keeper had previously been served (I did not receive a Notice to Keeper).
I emailed PPC again, explaining the full position and inviting them to confirm receipt of my appeal and to show reason and rescind the PCN. Again, no reply.
3 months later I received a 'Letter Before Court Action' in which the charge amount had, without explanation, risen to £160.
I emailed PPC again and again got no reply.
3 months later i received an LBC from Gladstones.
I again emailed PPC and got no reply.
I now receive a Claim Form. The Particulars of Claim state where and when the incident occurred but not how the driver breached the terms of signage.
I understand now that I've made mistakes in how I've responded so i want to get my Defence right
I post below a draft Defence but I'm unsure whether it is also worth pursuing a line that they have not asked me to identify the driver (I identify myself in email responses as the person who was with the car when the ticket was issued but at the time I was recovering from illness and, at times I was driven by my wife and other family members while I was recovering, it could be that on the day in question they dropped me off at work and left the car parked in a bay for me, with me as a passenger)?
(Please ignore the numbering, I will sort this out later!):
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 serial litigants and issuers of speculative claims, using “template” particulars of claim, with no due diligence.
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.
2 The Defendant appealed the Parking Charge Notice on the (date of issue) 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 not responded to; a pattern of behaviour that the claimant repeated time and again despite repeated attempts by the defendant to engage.
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) The basis on which charges over and above the initial charge are being claimed and calculated
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
5 The Defendant denies liability for the entirety of the claim for the following reasons:
5.1 The Defendant displayed a permit 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 permit from sight, despite the windows & doors being locked.
b) The employee of the Claimant may have caused the permit 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 to get to their own vehicle or nearby offices.
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.
5.5 The permit was taken from the footwell of the car by the Defendant and shown to the parking enforcement officers when they were still at the scene. The two officers were wearing bodycams at the time, which they confirmed were in use. This occurred in the presence of a witness. The Claimant had a full record of the Defendant having a valid parking ticket for the time at which the PCN was issued without the ticket being visible on the dashboard.!
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.
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.
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 themselves to be in possession of 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 information available from the Defendant having provided details of a valid permit that would have enabled it to establish that the Defendant was parked legitimately.
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 an office car park where revenue is earned from the payment for parking spaces by tenants of the offices and buildings to which it serves.
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 strike out the claim for the above grounds.!
0
Comments
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I'll assume the Claim Form came from the County Court Business Centre in Northampton. Please confirm.Claim Form for County Court is dated 22nd Feb
With a Claim Issue Date of 22nd February, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Wednesday 27th March 2019 to file your Defence.
That's over three weeks 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.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- 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'.
- Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
- Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
- 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.
0 - Sign it and date it.
-
have you seen these?
https://www.bing.com/search?q=fluttering+tickets+parking&form=EDGEAR&qs=PF&cvid=eec2fb69fe8c46e0aeba1bce3384541e&cc=GB&setlang=en-GB&PC=ACTS
Many judges regard these fluttering ticket claims as a trifle, a waste of court time, an abuse of process. The law does not concern itself with trifles.
https://en.wikipedia.org/wiki/De_minimis.
IMO you should therefore read up on unreasonable behaviour costs under CPR27.14(2)(g)
Also, get your MP on side as 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 become so widespread that MPs agreed to enact a Bill to regulate these scammers. Hopefully, this will become law by Easter .You never know how far you can go until you go too far.0 -
Waster ....
The £50 solicitors cost is normal and allowed.
It should read
£100 for the ticket
£25 court costs
£50 solicitors fees
a small amount of interest
It's the £60 that Gladstones are adding as a scam and double recovery. Gladstones know the £60 is a scam is not acceptable, the courts have already told them.
You have a valid ticket, you even showed it to the parking goon who could have cancelled the ticket.
Your job is the prove to the judge that the PPC acted in an Unreasonable manner and failed to mitigate
PLUS the fake £60 add-on is double recovery
Gladstones continue to issue these timewasting claims so it's no wonder they fail to turn up in court
Get your costs schedule ready when you win0 -
Report Gladstones to the SRA, they are trying to scam you out of £60
https://www.sra.org.uk/home/home.page
also complain to your MP.
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 become so widespread that MPs agreed to enact a Bill to regulate these scammers. Hopefully, this will become law by Easter .You never know how far you can go until you go too far.0 -
Thank you all for your time and really useful advice. Confirmed that the Claim Form did come from the County Court Business Centre in Northampton. I'll read through and get on with your recommendations tonight!0
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I hope I'm now ready to submit my Defence, I'd appreciate any further comments on the latest draft.
Some extra information - the details requested from my SAR were sent to me and within it there is a letter from the PPC, dated 3 days after the PCN was issued, basically rejecting my appeal because there was no permit on display at the time the PCN was issued. I did not receive this letter and this would be clear in subsequent emails sent to the PPC (sent following other letters that I did receive). There is no 'Notice to Keeper' within the documents they have sent. As stated above, the first I heard after submitting my appeal was a 'Final Reminder' letter from the PPC
the wording of the Particulars of Claim is as follows:
Particulars of Claim:
The driver of the vehicle with registration XXXXXXX parked in breach of the terms of parking stipulated on the signage (the 'Contract') at XXXXXX Car Park on (date) thus incurring the parking charge (the PCN). The driver of the vheicle agreed to pay the PCN within 28 days of issue yet failed to do so. The Claimant claims the unpaid PCN from the Defendant as the driver/keeper of the vehicle. Despite demands being made the defendant has failed to settle their outstanding liability. The CLAIMANT CLAIMS £100 for the PCN, £60.00 contractual cost pursuant to the Contract and PCN terms and conditions, together with statutory interest of £8.74 pursuant to s69 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 claim particulars fail to specify in what capacity the claimant makes a claim against the Defendant; as driver or keeper or both, referring to the Defendant ambiguously as the driver/keeper
1.2 The Claimant and their solicitor are known to be serial litigants and issuers 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''.
2 The valid permit was taken from the footwell of the car and shown to the employees of the Claimant immediately after they had affixed the Notice to the windscreen.The Defendant appealed the Parking Charge Notice on the day the ticket was issued (XXXXX) and explained what had happened, including a photo of the valid permit made from flimsy paper. The Defendant provided the Claimant with clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and conditions 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 Defendant received no response; a pattern of behaviour that the claimant repeated time and again despite numerous attempts by the defendant to engage.
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) The basis on which charges over and above the initial charge are being claimed and calculated
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
5 The Defendant denies liability for the entirety of the claim for the following reasons:
5.1 The Defendant displayed a ticket so all details could be seen. The ticket was made of 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 ticket from sight, despite the windows being shut & the 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 to get to their own vehicle or nearby offices.
5.3 None of the above scenarios are within the Defendant’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 ensuring permits had a sticky backing to allow 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 permit was taken from the footwell of the car by the Defendant and shown to the employees of the Claimant when they were still at the scene. The two employees were wearing bodycams at the time, which they confirmed were in use. This occurred in the presence of a witness. The Claimant had a full record of the Defendant having a valid parking permit for the time at which the PCN was issued without the permit being visible on the dashboard.!
5.6 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 2015.
Claimant is seeking a penalty and inflated costs
6 The Claimant seeks £160 which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown themselves to be in possession of a valid permit and the Claimant has suffered no loss, and because any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.
6.1 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 permit that would have enabled it to establish that the Defendant was parked legitimately.
6.2 £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).
6.3 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 a free car park and the Claimant needed to prevent overstays of the free 2 hour stay. Whereas in this case the car park is an office car park where revenue is earned from the payment for parking spaces by tenants of the offices and buildings to which it serves.
6.4 The Defendant denies that the Claimant is entitled to any interest whatsoever
7. 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 contract and the Claimant has suffered no actual loss. In plain language, the Claimant has spent X months aggressively seeking extravagant sums for a presumed failure to display a parking permit; evidence for the validity of which has never been questioned
7.1. 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.0 -
I received a notice of transfer of proceedings 3 weeks ago and today I received a letter from my local County Court stating 'Please send your Defence document to process your claim by 12th June 2019'. I haven't been sent a hearing date so I'm hoping that this doesn't mean I have to put together my WS, evidence etc. in 8 days? I don't know what is included in a 'Defence document'; is it simply a copy of the 'defence', as outlined above, or something more? Thank you for any help.0
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Did you file your Defence with the CCBC back in March - as suggested in post #2 above?0
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yes, just checked again on MCOL and my defence is marked as received on 25/3/190
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Then I would suggest you ring the local court in the morning and tell them you don't understand their request. If they are simply asking you to resend your Defence to them, then I would do that, but you really need to know if they are asking for something different.
It is not unknown for the courts to lose things.
Can you show us that order, or at least the full wording?0
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