County court letter for not clearly displayed ticket

Coupon-mad

Just saw you have two points #4.

Also every paragraph needs a number, including:

‘In DB05057D the adjudicator said:

Nukacola

Thanks again, I've remembered the points.


IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

SIP CAR PARKS (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in a marked bay allocated to SIP car parks at Tariff Street, Manchester and had a valid permit to be parked in that bay.

3 The driver checked the ticket after placing it on the dashboard, and it was clearly displayed. 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 term, ‘not clearly displayed' ’ 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. 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.

5 It would be reasonable to expect a parking firm, as a purported service provider in a customer car park open to the general public, to provide non-flimsy tickets and a method of attachment such as a sticky or double sided ticket - where they know this is a repeated issue. The defendant includes the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' in this defence, because the Supreme Court (and the Court of Appeal Judges) in ParkingEye Ltd v Beavis [2015] UKSC 67 were happy to draw similarities with Council PCNs as detailed in points 6 and 7.


6 '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.”

7 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."’

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

9 The claim is brought for breach of contract. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

10 Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

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

12 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.

13 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 damages, 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.

14 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.

I believe the facts contained in this Defence are true.

Name
Signature
Date

Coupon-mad

Great, email that off (signed & dated) as per KeithP's advice.

Stick around though, and refer to the NEWBIES thread at each & every stage.

Nukacola

Hi everyone

Fun little update for you regarding the SAR.

So I went to the privacy page on SIPs website to get the email address: sipcarparks . com/privacy-statement

The text said dataprotectionATsipcarparks.com but when I clicked the link to send the email, the email was addressed to [dataprotectionATeurocarparks.com. So I included both.

Just got a response from euro car parks:

Good Morning

Please be advised that Euro Car Parks do not hold any data with this post code

I note that you email is addressed to SIP CAR PARKS - however you have contacted
info@ eurocarparks.com

If I can help further please do not hesitate to contact me directly

Regards

Name
Customer Services

My response:

Hello,

Thank you for replying.

The SAR was requested on 7 May 2019 using the email address provided on the SIP website, so the starting date still stands.

I've clicked the link from the data protection and privacy page on the SIP car park website: WEBSITE

The text said SIPEMAIL but when I clicked the link to send the email, the email was addressed to EUROCPEMAIL. I thought that was strange so I included both email addresses.

I've copied in another email address from that page, the last possible contact. Funnily enough, the same thing has happened with INFOSIPEMAIL. I've copied in all possible email addresses now, despite the most recently copied in email address being for media enquiries.

So are are eurocarparks and SIP car parks not related in anyway? I'd suggest getting your email address removed from their website if not.

I've yet to receive a reply from SIP's dedicated privacy email address SIPDPEMAIL. Not providing the information I've requested in the lawful amount of time is against GDPR laws.

I'll be adding this to my defence for the unfair parking ticket addressed to me as the owner of the vehicle.

SIP must provide the information requested on 7 May 2019. The starting date of the SAR is 7 May 2019. You can see the information requested in this email chain. For your ease, I'll copy it again below, just incase you're unable to scroll.

Then my original SAR request.

Thought you guys might like to be aware of this?

I've not sent my defence yet as I wanted to see what came back from the SAR. Is it worth adding this obvious avoidance of complying with SAR request to my defence?

Thanks! Unable to post links so email and website removed.

Umkomaas

Looks like SIP have just plagiarised ECP's Privacy statement.

I'd fire off a strong complaint to the ICO about being mislead by SIP's sloppy attitude to privacy!

Is it worth adding this obvious avoidance of complying with SAR request to my defence?

Does that make you any less liable for a parking event that took place n months/years ago? That's all a Judge is being asked to decide.

Nukacola

Hi everyone

Thanks for your responses so far. I requested the SAR and my defence has been received.

I've received the notice of proposed allocation to small claims track, which I assume I fill in and send a copy off to SIP too?

Thanks

Nukacola

Sorry just re read the newbies post. I'll follow the instruction on there.

KeithP

Nukacola wrote: »

I've received the notice of proposed allocation to small claims track, which I assume I fill in and send a copy off to SIP too?

Are you no longer following the guidance offered in the NEWBIES thread?

Bargepole's 'what happens when' post tells you exactly what to do with that.

No need to 'assume'.

Nukacola

Sorry I just commented immediately after that I found it in the newbies thread, it's pretty full on for me to get my head around all of this. Sorry to bother you!

Nukacola

Hi everyone,

Just an update - I've received the letter for the hearing. I'm pulling together the evidence as advised on the newbies thread.

Thanks