Defence Preparation

benjitbs

Currently preparing my defence, based on parking ticket purchased & displayed on windscreen which subsequently blew off!
The driver purchased the ticket from a parking attendant on entering the HX car park, the diver still has the ticket.
My question is- Does this change how the defence is worded in any way?
HX state "the driver is in breach of the terms of parking stipulated on the signage (the contract)
The parking attendant did not make the driver aware of any contact or requirement to display a ticket. Only dialogue was "That`s £4"
Any advice is greatly appreciated.

KeithP

Hi and welcome.

Do you have a County Court Claim Form?

If so, what is the Issue Date on it and did it come from the County Court Business Centre in Northampton, or from somewhere else?

Coupon-mad

parking ticket purchased & displayed on windscreen which subsequently blew off!

Search the forum for:

fluttering ticket defence

And also answer KeithP:

Do you have a County Court Claim Form?

If so, what is the Issue Date on it and did it come from the County Court Business Centre in Northampton, or from somewhere else?

The_Deep

Read some of these

https://www.bing.com/search?q=fluttering+tickets++prankster&form=EDNTHT&mkt=en-gb&httpsmsn=1&refig=41bd568af64a43abef12882563482c9f&PC=ACTS&sp=-1&pq=fluttering+tickets+prankster&sc=0-28&qs=n&sk=&cvid=41bd568af64a43abef12882563482c9f

Nine times out of ten these tickets are scams so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

benjitbs

Hi Keith,
Thank you for your reply.
The claim form issue date is 11 June 2019, I responded via moneyclaim & ticked I intend to defend all of this claim. Which i assume gives me 28 days to fine my defence?
I have received SAR I requested from HX & appealed to my local MP for support ( yet to hear a response).
I have drafted my defence based on a fluttering ticket but I am unsure if the fact a ticket was purchased from a parking attendant directly means an individually negotiated contract was entered?
I have taken photos of a sign close to where the car was parked which is covered by overgrown bush.
Any help is greatly appreciated.

benjitbs

And yes ? It did come from County Court Business Centre in Northampton.

KeithP

benjitbs wrote: »

The claim form issue date is 11 June 2019, I responded via moneyclaim & ticked I intend to defend all of this claim. Which i assume gives me 28 days to fine my defence?

With a Claim Issue Date of 11th June, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 15th July 2019 to file your Defence.

That's over three weeks away. Loads of time to produce a perfect Defence, but please 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.

benjitbs

Phew, thank you. Takes the pressure off a little, however the prospect of attending court is very daunting! I will finalise my defence on Monday. Would you mind looking over for me please?

KeithP

benjitbs wrote: »

Phew, thank you. Takes the pressure off a little, however the prospect of attending court is very daunting!

That's only natural.

Have a look at this short video:

www.youtube.com/watch?v=n93eoaxhzpU

benjitbs

Hi,
Here is my first draft, any suggestions/amendments would be greatly appreciated. Gladstones sent me a bundle of evidence, including copy of pay & display tariffs & hourly rates for a machine which I haven`t seen, rather on entering the car park their is a hand written sign stating "Stop here to pay". Parking attendant asked for £4 & no mention of displaying ticket. How can i include this in my defence? This was a fluttering ticket, which I have in my possession.
Thank you

IN THE COUNTY COURT

CLAIM No: XXX

BETWEEN:

HX Car Park Management Limited (Claimant)

-and-

XXX

I am XX, Defendant in this matter and I assert that the Claimant has no cause for action for the following reasons:

1.It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XX when it was parked at XXX. The PCN stated the contravention as “No ticket displayed.”

3. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the Claimant's case that:
a. There was a contract formed by the Defendant and the Claimant on XX/XX/XX.
b. There was an agreement to pay a sum or parking charge
c. That there were Terms and Conditions prominently displayed around the site
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
e. The Claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

4. It is denied that:
a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
e. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

5. It is further denied that the Defendant is liable for the purported debt.

Rebuttal of Claim
6. The Defendant made all reasonable efforts to make payment for parking by paying the parking attendant.
a. The service makes no provision for attaching the small flimsy ticket to a windscreen, with the absence of any adhesive.
In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

7. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established, which is superior to any signage offering a unilateral contract.

8. The Defendant denies that they would have agreed to pay the original demand of £60 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
a. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.

9. The signage on this site was inadequate to form a contract with the motorist. On further inspection of the car park, signs were found to be obscured by overgrown trees.
a. The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.
b. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.
c. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.
g. Where contract terms have different meanings, as in a parking attendant was paid and made no mention of the requirement to display the ticket, then 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.
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.

10. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £60 to £241.60. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.
a. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.
b. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £60 to £241.60. This appears to be an added cost with no apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
b. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

Non-disclosure of reasonable grounds or particulars for bringing a claim:
11. HX Car Park Management Ltd are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in
their own name and that they have no rights to bring action regarding this claim.
a. The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.
b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
c. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party
agent, the Claimant may not pursue any charge
d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

12. 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 driver of the vehicle registration
XXXX XXX incurred the parking
charge(s) on XX/XX/2019 for breaching the
terms of parking on the land at XXX Street .
The Defendant was driving the Vehicle and/or
is the Keeper of the Vehicle
AND THE CLAIMANT CLAIMS
£160.00 for Parking Charges / Damages and
indemnity costs if applicable, together with
interest of £6.81 pursuantto s69 of the
County Courts Act 1984 at 8% pa, continuing
to Judgement at £0.04 per day’

13. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
a) The Claimant has disclosed no cause of action to give rise to any debt.
b) The Claimant has stated that a parking charge was incurred.
c) The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
d) The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence.
There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The Particulars of Claim are incompetent in disclosing no cause of action.

14. 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 another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their ‘roboclaim’ 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’.’

15. The Defendant researched the matter online, and discovered that the Claimant is a member of the Independent Parking Committee (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the IPC. This research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. These findings indicate a conflict of interest. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the Solicitors Regulation Authority Code of Conduct.

16. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.

17. The Defendant believes the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

18. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.

19. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

20. The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

I believe the facts stated in this Defence Statement are true.

Coupon-mad

That's such an old draft I'm not even sure the Practice Direction numbers are current. Start again. Won't take more than an hour, this is easy to build.

Same as all other Gladstones cases, use bargepole's concise defence from the NEWBIES thread post #2, and add your own facts:

At the time a ticket was attempted to be purchased from one of two pay machines. Several failed attempts were made until moving to the second pay machine. This machine eventually gave a ticket after 2-3 attempts. The ticket was displayed which was believed to be valid at the time.

A few weeks later a letter was received from bw legal stating that the vehicle was parked without payment. The ticket was quickly recovered from the car only to discover that a void ticket was issued not a parking ticket. It looked the same as a parking ticket

And then change to ending to the longer version (ADD PARAGRAPH NUMBERS!) about disproportionate costs, that you read in all the recent defence threads.

Gladstones sent me a bundle of evidence, including copy of pay & display tariffs & hourly rates for a machine which I haven`t seen, rather on entering the car park their is a hand written sign stating "Stop here to pay". Parking attendant asked for £4 & no mention of displaying ticket.

How can i include this in my defence? This was a fluttering ticket, which I have in my possession.

You just put those facts in the third person 'the Defendant'.