Fluttering parking ticket

Janetx

Hello,
Please help?
This is my first post I am a newbie. I am slightly senior and I have experienced a bit of trouble finding my way around this site and posting this request for help. I have already read some of the defenses listed on this forum but I don't know which specific ones apply to our specific situation?Therefore we need help to fight this

My daughter has received a N1 County Court Claim on the 8th January 2020 dated 30 Dec 2019 from Excel Parking and we are not really sure of how much time we have left to file a defense.

It was her first day back in work in her new job, following emergency admittance to Hospital. She was discharged after two weeks and then had some weeks off sick from work recovering.
She suffers from severe Ulcerative Colitis which is a chronic lifelong illness and is a disability covered by The Equality Act 2010.

The car park is directly across the road from her office and on the quay side in SA1, of what used to be the old docks in Swansea. It is completely exposed to the open sea. The area had a yellow weather warning that day and suffered from gusts of gale force winds.

My daughter purchased a ticket for 12 hours ( much longer than she needed) for £5,00 at 08:07. She had to fight against the wind with the car door to put the ticket on the dashboard and collect her things. Whilst doing all this, she was in terrible pain and was experiencing symptoms of her illness.The symptoms made her rush and hurry to find a toilet urgently and she has a record of clocking in work at 8:09.

When she returned to her car later, she found a Parking Notice Charge stuck on her windscreen. She couldn't understand this and looked through the car window to see the parking ticket (non sticking back) sitting on top of her gear stick.

She appealed to the relevant Excel appeal channel immediately and explained and included pictures of the purchased ticket. However she has no full copy of the appeal, as the site did not record a copy for her, but they acknowledged it in their refusal of your appeal letter.

She has since received letters of demand from Excel parking with, pay by a certain date on them, however these were posted and received after the date stated on the demand letter, so she would have been out of time if she had wanted to pay it anyway!

The car park is patrolled by Excel parking and is badly maintained with uneven surfaces and a lot of the white lines are eroded. There are two signs, one at the entrance to the car park and another sign placed right at the back of the car park which houses the ticket machine facing the open sea.

Lots and lots of people have been ripped off here. This includes one lady whom prevented a women from committing suicide, by throwing herself into the sea.She held onto the women whilst waiting for the Police to arrive, this made her late returning to her car. She appealed the charge notice, it was declined and it was only when the press got involved that the charge was removed.

Coupon-mad

My daughter purchased a ticket for 12 hours ( much longer than she needed) for £5,00 at 08:07. She had to fight against the wind with the car door to put the ticket on the dashboard and collect her things.

Tell your DD to keep blutack in her glovebox for any PD tickets. That's what I do.

My daughter has received a CCJ on the 8th January 2020 dated 30 Dec 2019 from Excel Parking and we are not really sure of how much time we have left to file a defense.

She hasn't got a CCJ, has she? Just a court claim to defend, we hope. She needs to acknowledge it online, but not sooner than day 5 from the issued date, then she needs to show us a draft defence, copying another one about fluttering tickets.

What is the issued date of the N1 claim form?

Janetx

Yes sorry its the claim form N1 the claim is for breach of contract. issued on the 30.12.19

Janetx

I filed an acknowledgment of service today online how long have we got to file a defense?. Thank you so much for your previous reply

KeithP

Janetx wrote: »

Yes sorry its the claim form N1 the claim is for breach of contract. issued on the 30.12.19

Janetx wrote: »

I filed an acknowledgment of service today online how long have we got to file a defense?

With a Claim Issue Date of 30th December, and having filed an Acknowledgement of Service in a timely manner, you have until 4pm on Monday 3rd February 2020 to file your Defence.

That's three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could 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. No need to do anything on MCOL, but do check it after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.

There is more to do after having filed your Defence...

1. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire. Nothing of interest there. Just file it.
   
2. Wait for your own Directions Questionnaire from the CCBC, or download one from the internet, and then complete it as described by bargepole in his 'what happens when' post.
3. The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier.
4. Send a copy of your completed DQ to the Claimant - to their address on your Claim Form.

The_Deep

Have you read this

https://www.equalityhumanrights.com/en/equality-act/protected-characteristics

A judge might be persuaded that the PPC have failed to make those reasonable adjustments which the law requires.

[FONT=Times New Roman, serif][FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, 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.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

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

Janetx

Defence

The Defendant who is disabled under the Equality Act 2010 appealed the postal Parking Charge Notice on the 04/03/2019 explaining the facts and circumstances of what had happened on the day in question. The SA1 car park is situated on the quay side, in what used to be the old Swansea docks. It is directly facing and exposed to the open sea and is invariably usually windy. However, on this day, there was a yellow weather warning in place for strong winds with gusts up to 61 KPH. This wind speed according to the Beaufort Wind Scale is categorised as an 8 out of 12 and classed as Gale force. Typical examples of Gale force winds are, severe difficulty in walking, small branches can be broken from a tree and therefore it is not unreasonable to expect movement of the vehicle. The Defendant, who suffers from, severe Ulcerative Colitis which is poorly managed, was returning to work following a period of Hospitalisation. The Defendant purchased a ticket at 8.07am and displayed it on the dashboard and upon collecting their belongings had a sudden urge to go to use the toilet facilities. The Defendant clocked into work at 8.09 am (evidence included). The Defendant explained all of this, in the appeal to Excel Parking and included a copy of the purchased ticket displayed on the day providing the Claimant with clear evidence that the Defendant had acted in good faith and made all reasonable endeavors to comply with the terms and conditions (“T&C”) - as far as they were understood.

This was an opportunity for the Claimant to act reasonably and cancel the charge.

Background

I am xxx the Defendant and was the authorised registered keeper and the driver in question at the time of the alleged incident.

The Defendant denies liability for the entirety of the claim for the following reasons:-


1 EQUALITY ACT 2010 BREACH.
The Equality Act 2020 states that Disability is a protected characteristic which prevents direct and indirect discrimination and reasonable adjustments should be applied accordingly. Excel parking have failed to offer reasonable adjustments which are required by law. In my appeal to Excel Parking I advised that I had been taken ill suddenly with my condition and had rush to the toilet immediately as a direct result of my disability. The Defendant should also not have to pay for reasonable adjustments. EXCEL Parking offered a reduced rate following the appeal, resulting in a charge for offering reasonable adjustments. Following evidence of a valid ticket, an appropriate reasonable adjustment would have been to waive the penalty charge.

2. TICKET WAS PURCHASED AND DISPLAYED
A ticket was paid for and displayed so all details could be seen and was 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 was dislodged from the windscreen and was displayed on the gear stick of the vehicle, or why, but made reasonable endeavors, and complied by conduct.

3. DEFENDANT CANNOT BE LIABLE FOR EFFECTS CAUSED BY THE WEATHER
The Defendant cannot be responsible for the possibility that:
a) A gust of wind may have later dislodged the flimsy paper, despite the windows & doors being locked. The vehicle was occupying the end space with the driver side of the row closest to the entrance with no wind barrier.
b) An employee of the Claimant may have caused the ticket to move, perhaps accidentally when leaning across the car or pushing between vehicles. No suggestion of foul play is intended but this is a known predatory tactic among this industry.
c) A passer-by may have leaned on the car, when squeezing between the small bays to get to their own vehicle.
d) The Defendant whom is disabled, was ill at the time and would have had mitigating circumstances.

4. DEFENDANT CANNOT BE RESPONSIBLE FOR EVENTS BEYOND THEIR CONTROL FRUSTRATED CONTRACT
None of the above scenarios are within a driver's control (The driver 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 FLIMSY PARKING TICKETS NOT FIT FOR PURPOSE - ENTRAPMENT
Notwithstanding the above, the flimsiness of the ticket certainly played its part, and that is within the control of this industry, who are well aware of the problem, which even have a name attributed: ''fluttering tickets''. They profit from drivers' misfortune caused by their own tickets' inability to withstand British weather; it is averred that this Claimant willfully failed to address this issue (e.g. by adding sticky backing to the ticket allowing 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).

6.LOCATION
The court may need to acknowledge the location of this car park in SA1 facing the open sea. The Claimant is responsible to provide substantial tickets with sticky back, which can be affixed securely and displayed.

7. UNFAIR CONTRACT TERMS
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.
''A term or notice is deemed to be ‘unfair’ if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer. This is to be determined by taking into account the nature of the subject matter of the contract, and by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends, ''An unfair term of a consumer contract is not binding on the consumer.''(s.62 Consumer Rights Act 2015).

8. CONTRA PROFERENTEM RULE
The term, ‘Failure to clearly display a valid Pay & Display ticket (when applicable)’ 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.

9.EXCEL PARKING ARE NOT THE LANDOWNER NO LEGAL STANDING TO ISSUE CLAIM
The Claimant has failed to establish their legal right to bring a claim, either as the landholder/owner or as the agent of the landholder/owner. They are not the landowner and therefore would have no standing to issue this claim. They have no legal standing, locus standi to bring this claim, per Tweddle v Atkinson [1861] 1B &S 393, and as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd.
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 ticket to park.

10 PENALTY DOES NOT APPLY
In the case of ParkingEye vs Cargius it has held that the Beavis case does not apply where parking was paid for rather than free parking for a limited time. The distinguishing factor is overstaying in a free car park is the owners only income. Whereas in a paid car park, the hourly charge is being lost. Any amount above the daily charge is a penalty and unenforceable.

11. EXAGGERATED AND OVER INFLATED COSTS
The Claimant seeks £155.00 which is an extravagant and unconscionable penalty, and therefore unenforceable. Particularly because the Defendant has evidenced that they purchased a valid ticket and the Claimant has suffered no loss. Any breach of contract (which, for the avoidance of doubt, is denied) was de minimis. De minimis non curat lex ("The law does not concern itself with trifles"), a legal doctrine by which a court refuses to consider trifling matters.The amount of £70 of the £155.00 ‘parking charge’ (for which liability is denied) the Claimant has untruthfully presented as contractual charges, for which no calculation or explanation is given amounts to double charging, which the POFA 2012 Schedule 4 specifically disallows. It is also in breach of the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair' since the amount requested must set to include the costs of recovering the charge or else it falls foul to the Beavis case.
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 (£35).

12. NO AGREEMENT NO BREACH OF CONTRACT
The driver did not enter into an 'agreement on the charge', no consideration flowed between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of £70 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

13. PAY AND DISPLAY DIFFERENTIATES BEAVIS CASE
There is no possible commercial justification for such a trivial error for the Claimant. The Beavis v ParkingEye [2015] Judges at the Court of Appeal stated there was a commercial justification as it was free car park and needed to prevent overstays of the free 2 hours stay. Whereas in this case the car park is a Pay and Display car park where revenue is gained as people need to pay to park there for an agreed period of time.

14.INADEQUATE SIGNAGE AND BREACHES OF REGULATIONS
The signage at this location inadequate and fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (information, Cancellation and Additional Charges) Regulations 2013. The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the Regulations, therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the trader.
The Regulations state, at 13(1)(a), that the information listed in Schedule 2 must be given or made available to the consumer in a clear and comprehensible manner. The Claimants notice fails to comply with various clauses of Schedule 2, as follows:
2(k) – Requirement to provide a complaint handling policy. This is not described on the signage.
2(o) – Requirement to provide information about the right to cancel, or to state that there is no right to cancel. This is not stated on the signage.
2(r) – Requirement to provide information about Codes of Conduct. This does not appear on the signage.
2(x) – Requirement for access to an Alternative Dispute Resolution mechanism. Not indicated by the signage.]
Due to these significant breaches of the Regulations, it is submitted that the Defendant cannot be held contractually liable, according to the wording of the Regulations at 13(1) ‘Before the consumer is bound by a distance contract, the trader must abide by ???????????.............xxxx

15.PERMISSION
Permission was granted!– In the case where a car was parked in a permit car park with permission of the principal (e.g. the landowner) then it could be argued that this overrides the contract with the parking company. An example of this might be where as a leaseholder, your deeds give you rights over your parking space, so you have a right to peaceful enjoyment of that space irrespective of any latter arrangement with a parking company.

16.NO EVIDENCE OF LANDOWNERS AGREEMENT DISCLOSED IN PARTICULARS OF CLAIM
Excel Parking do not own the land they operate on. As such, they can only contract with motorists to park on the land if they have the legal right to offer it. If they do not, then the contract with the driver can’t be enforced. Examples here are in the leasehold parking space – if the leaseholder leases the space, then the management company do not have rights over it to contract in a parking company. Other examples are where the contract between the parking company and the landowner are out of date, or that the wrong parties are named.

17. PLANNING CONSENT SIGNAGE
The claimant's has no planning consent in place for the signage. No advertising consent for signage. Therefore, the Claimant is not entitled to rely on an illegal or immoral act in order to profit from it, pursuant to the doctrine ex dolo malo non oritur actio. In this matter, the Claimant does not have advertisement consent in relation to its parking signage on the land in question (which are classed as “advertisements” under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended). This is a criminal offence under Regulation 30 of those Regulations. Accordingly, as a matter of public policy and pursuant to the doctrine, the Claimant should not be allowed to found a cause of action on unlawful signage. The rationale for this is set out in the case of Holman v Johnson (1775) 1 Cowp 341 and was reaffirmed in RTA (Business Consultants) Ltd v Bracewell [2015] EWHC 630 (QB) (12 March 2015). The Defendant also relies on Andre Agassi v S Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507 and ParkingEye v Somerfield Stores [2012] EWCA Civ 1338.

The Defendant denies that the Claimant is entitled to any interest whatsoever

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

The Defendant will also be claiming for reasonable costs

The Defendant places the claimant on notice that an order for unreasonable conduct will be sought

I believe the facts stated in this defence are true.[/COLOR][/COLOR]

Janetx

Any help or suggestions in ways to improve this defence, delete incomplete statements or not relevant things or add things that we may have missed and left out, will be much appreciated and gratefully received..... Thank you
We have made inquires regarding planing permission for their signs and are waiting on a reply

Fruitcake

Defence, not Defence Statement.

You don't appear to have an Inadequate Signage point in there unless I have missed it.

Please hit enter after each point to put line spacing in and make it easier to read.

Expand on the Not the landowner and No standing to issue charges points. You have not actually said that they have no standing.

You need a list of headings for the defence points.

1 Equality Act 2010 breach
2 Ticket was purchased and displayed
3 Defendant cannot be liable for effects caused by the weather
4 etcetera
5 etcetera

Quote the "fluttering ticket case from this link. Look up de minimis legal term and quote it.
De minimis non curat lex ("The law does not concern itself with trifles"), a legal doctrine by which a court refuses to consider trifling matters.

Janetx

Have checked..... and they do not have planning for the signage..... so we have included it in the defence..........is there anything else that needs to go into the defence..... or anything that we need to alter i.e. the numbered headings.....I did my best but it may be naive.... and may not be up to scratch or correct??

Redx

still has that awful word STATEMENT after defence , near the top, despite your amendments