KBT Cornwall Ltd t/a Armtrac Security

Joe_Blocks

Ok so cant i copy & paste my defense in here for someone to check or do i have to write it all in this little box below?

Redx

you can split it across 2 or 3 posts , but you have missed your deadline for your DEFENCE (no S) submission by email or post


this thread is a classic example of running down the clock (parking the bus)

Joe_Blocks

My Defence


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

1. I am XXXX, the Defendant, and the authorised registered keeper but not the driver of the vehicle in question at the time of the alleged incident. 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. The facts are that the vehicle, registration XXXXXXX, of which the Defendant is the registered keeper, was parked on the material date at XXXXX Car Park. The defendant is unable to provide details of who the driver was at the time of the alleged contravention on XXXXXX, as the vehicle is used by multiple family members and friends. I have no reason to believe, however, that a ticket was not purchased on the day from the driver as it states on the PCN i received by letter in my SAR the reason for issue is a expired ticket.
Also may i add on this date and time in question i was not the driver of the vehicle.I was at a friends house.

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''.

BrownTrout

Get it in tonight
Why on earth do people do this....

Redx

incorrect numbering for a start


seems to have missed out a few key legal issues too (compared to the concise defence by BARGEPOLE)

Joe_Blocks

5 Section 71 of the Consumer Rights Act 2015 provides that the Court has a duty to consider the fairness of the terms. 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 these reasons.

6 The term, ‘A valid ticket must be purchased to park on this site and be displayed clearly in your front windscreen’, in particular the meaning of ‘displayed clearly’, is not transparent per Section 68 of the CRA 2015. Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt.

KeithP

Joe_Blocks wrote: »

Why won't it let me post more?

What is 'it'?

You will have seen that many people manage to post lengthy posts.

Indeed, you have done so in the past - see post #8 above.

What are you doing different?

There is a board for forum feedback.

Joe_Blocks

my IP got banned yesterday when i tried to post it all from a note pad where i wrote it...that's why




7 A valid ticket was displayed in the front windscreen of the Defendant’s vehicle. If the Claimant wanted to impose a different term to say continuously display the ticket face-up 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.

Joe_Blocks

8. It is not disputed that the ticket gave the Defendant a licence to park for the entire day. The ticket was displayed on the dashboard at all times. This will be demonstrated by the Claimant’s own evidence. The Claimant’s evidence will show the back of the ticket has a serial number of XXXXXXXX. The Defendant’s evidence will also show the front and back of the ticket has the same serial number of XXXXXXXX. Furthermore, the Defendant’s evidence will also show that the front of the ticket also displays the last 3 letters of their registration number and that a valid ticket was purchased via Credit Card.

9. The valid parking ticket was taken from the dashboard of the car and shown to the PCN issuer after they had affixed the PCN to the windscreen, but they refused to cancel the PCN. The Defendant subsequently appealed the PCN on XX/XX/XXXX explaining what had happened and included a photographic copy of the front and back of the ticket displayed on the day. The serial number on the front and back of the ticket in the Defendant’s photograph, in fact, matching the serial number on the claimant’s photo of the reverse side of the ticket: XXXXXXXX and the front of the ticket in the Defendant’s photograph also displays the last 3 letters of their registration number. On both accounts, this provided the Claimant with clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and condition (“T&C”) - as far as they were understood. Both provided an opportunity for the Claimant to act reasonably and cancel the charge.

Joe_Blocks

10. The above constitutes a direct breach of Practice Direction pre-action conduct and protocols; specifically - paragraph 3 (Objectives), and 8 (Settlement and ADR). As such the court's attention is drawn to paragraphs 13–16 and also a direct breach of the International Parking Community ("IPC") Code of Practice ("CoP"), Part B, Section 6. The CoP is effectively regulation for the private parking industry, as found by the supreme court judges in Parking Eye Ltd v Beavis [2015] UKSC 67.

11. 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 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.