Fluttering parking ticket

Janetx

please see the passage in red at 14............the trader must abide???????? I cannot find what comes next?

Janetx

Sorry....I have taken it out I am Dyslexic....and sometimes miss the obvious! apologies...so grateful for any help

Redx

thats better

have you thought about a counter claim under the EA2010 ?

like this thread here on pepipoo forums

http://forums.pepipoo.com/index.php?showtopic=132797


ps:- in post #1 it says your daughter has received a CCJ , this is not true , it hasnt been to court yet

your daughter has received a court claim from the CCBC is probably the truth , so amend and edit post #1 too

Janetx

Thank you to those who have provided comments and suggestions. I have posted the revised draft below and would be grateful for any further suggested amendments.


Defence



1.Background

The Defendant 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:
The Defendant whom is disabled under the Equality Act 2010, appealed the postal Parking Charge Notice on the xxx 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 a gale. Gale force winds are likely to cause severe difficulty in walking, cause branches of trees to be broken off and cause damage to roofs and buildings, therefore it is not unreasonable to expect movement of parked vehicles. The Defendant who suffers from Ulcerative Colitis, which is poorly managed, was returning to work following a period of hospitalisation, purchased a ticket at 8.07am and displayed it on the dashboard. Whilst collecting their belongings the Defendant, because of their illness/ disability, had a sudden and urgent need to use toilet facilities. There are no toilet facilities at the car park.The Defendant rushed to use the nearest toilet in their work building. The Defendant clocked into work at 8.09 am (evidence included). The Defendant explained the circumstances to Claimant, in the appeal 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 endeavors to comply with the terms and condition (“T&C”) - as far as they were understood.

This was an opportunity for the Claimant to act reasonably and cancel the charge, The Civil Procedure Rules, CPR.Rule 27.14(2)(g) states that the court may summarily assess a party’s costs and order them “to be paid by a party who has behaved unreasonably”

2. Breach of Equality Act 2010

The Equality Act 2020 (EA) 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 the Defendants appeal to Excel Parking, the Defendant advised that as a direct result of the Defendants disability, they had suddenly been taken ill and had rush to the toilet immediately, The Defendant should also not have to pay extra for reasonable adjustments. Excel Parking offered a reduced rate following the appeal, resulting in a charge for offering reasonable adjustments. Following receiving evidence of a valid ticket, an appropriate reasonable adjustment would have been to cancel the penalty charge.
As the Claimant failed to do so, this was direct discrimination, Equality Act 2010, as this puts the disabled person at an unfair disadvantage compared to an able bodied person. Thus, a detriment under S15 which is unfavorable treatment.
Williams v The Trustees of Swansea University Pension & Assurance Scheme and another [2018] UKSC 65
Section 21 and 22 of EA 2020 imposes a legal duty to make adjustments for disabled people of which Excel Parking did not.

3.Ticket was purchased and displayed

A ticket was paid for and displayed so all details could be seen and it was placed on the dashboard, 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 dashboard/windscreen and became displayed on the gear-stick or why, but made reasonable endeavors, and complied by conduct.

4.The Defendant cannot be liable for 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.

None of the above scenarios are within a driver's control (The Defendant/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. Parking ticket of poor quality unfit for purpose – Entrapment

Notwithstanding the above, the flimsiness of the ticket certainly played its part, and that is within the control of the Claimants and their industry, whom are well aware of the problem, which have had the name: ''Fluttering Tickets'' attributed. The Claimants and their industry, profit from drivers' misfortune, caused by their own tickets' inability to withstand British weather; it is averred that this Claimant has, 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 of" Fluttering Tickets" 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).
When addressing this, the court may also need to acknowledge, the actual location of this car park in the old Swansea docks SA1 facing the open sea. The Claimant is responsible and has a duty to provide substantial tickets with sticky back, which can be affixed securely and displayed.


6. Unfair terms of contract

Furthermore, 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; reference to all the circumstances existing when the term was agreed; 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).

7. Contra proferentem rule

The term, ‘Failure to clearly display a valid Pay & Display ticket (when applicable)’ particularly the meaning of ‘displayed clearly’ is not transparent per section 68 of the Consumer Regulations Act 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.

8. Claimant is seeking a penalty and inflated costs

In the case of ParkingEye vs Cargius it was held that the Beavis case does not apply where parking was paid for, rather than free parking for a limited amount of time. The distinguishing factor in Beavis, is overstaying in a free car park as the charges are the owners only income. Whereas, in a paid car park, it is the hourly charge which may be lost. Any amount above the daily charge is a penalty and unenforceable. The daily rate for this car park is currently £6.00 for 24 hours. The Defendant paid £5.00 to park for 4 - 12 hours.
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 non curat lex. ‘the law does not concern itself with trifles’.
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 Protection of Freedom Act 2012 (PoFA 2012) Schedule 4 specifically disallows.
It is also in breach of the CRA 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).

9. No agreement - no breach of contract

The Defendant/driver did not enter into an 'agreement on the charge', no consideration flowed between the parties and no contract was established. The Defendant/driver denies that the Defendant/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.


10. No commercial justification - differentiates from Beavis case

There is no possible commercial justification for such a trivial error by the Claimant. The Beavis v ParkingEye [2015] Judges at the Court of Appeal stated there was a commercial justification as it was a 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.The ticket purchased in this case was for 12 hours. This was much longer than the Defendants vehicle was actually parked there. The Defendant had no intention of leaving the vehicle there for 12 hours.

11. Inadequate signage – breach of regulations

The Defendant believes that the signage at this car park is inadequate for the following reasons:
a) The positioning of the signage of the car park actually renders it impossible for drivers/Defendant to read any of the alleged Terms and Conditions. All drivers have to enter the car park from the main road without being able to read the signage, thus no contract can be formed between the driver and Excel Parking.
b) The signs within the car park are difficult to read from inside the car for any disabled person/driver regardless of which side of the car park you park.
c) Unreadable signage breaches Appendix B of the British Parking Association Code of Practice, which states that terms on entrance signs, must be clearly readable without a driver having to turn away from the road ahead.
d) The signage is also unreadable on dark mornings due to the signs being poorly lit.
The onus is on the Claimant to demonstrate that the signs at the time and location in question were sufficiently clear.
The signage at this location also 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 give or make available to the consumer the information listed in Schedule 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used.

12.Duty of care

The parking area of this car park can only be described as nothing more than waste ground and is in a serious state of disrepair. It is not maintained or repaired by the Claimant or the Landowner. The non existent, car park surface consists of, a treacherous mixture of rough and badly broken up, uneven ground which is not safe and fit for purpose, which contains a dangerous mixture of mud, with sparse bits of broken down stones/gravel and water filled potholes. Car parking spaces, are not clearly defined, there are no white lines showing the boundary of individual parking spaces, white lines have been eroded. Thus making it impossible for users of this car park, to park within an appropriate boundary of a defined parking space. This approach is used by Excel parking, to trap and ambush, unsuspecting drivers, in order to maximise penalty charges, by making it so difficult for individuals to abide by the alleged T&C’s.
Excel Parking and or the Landowners have a duty of care to provide a safe environment for all users of this car park including any Disabled drivers.

13.No evidence

The Claimant has not disclosed or provided any evidence whatsoever in their particulars of claim that they have any legal standing or authority to issue such charges.
The operator Excel Parking is not owner of the land, nor has proprietary interest in the land, they have no legal right to make contracts with drivers in their own right, nor to pursue charges for breach in their own name.
In the absence of such a title, Excel parking must have assignment of rights from the Landowner to pursue charges for breach in their own right, including at court level.
A commercial site agent for the true Landholder has no automatic authority in their own right, which would meet the strict requirements of section 7 of the British Parking Association Code of Practice.
Leasehold parking space, for example – if the Leaseholder leases the space, then the management company does not have any right 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.

14. Strict Proof

The Defendant puts Excel Parking to strict proof to provide the Court and the Defendant with an unredacted, contemporaneous copy of the contract between Excel Parking and the Landowner, nor just another agent or retailer or other non-landowner, because it will still not be clear that the Landowner has authorised the necessary rights to Excel Parking. If they cannot provide proof of this, a contract with the Defendant/driver cannot be enforced.

15. Planning
There is no evidence whatsoever, that the Claimant has any planning consent in place for signage/advertising within this car park. Subsequently, 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. Accordingly, as a matter of public policy and pursuant to the doctrine, the Claimant should not be allowed to find 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) 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 the Claimant is entitled to any interest whatsoever.

The Claimant has a duty to mitigate their losses therefore as they have failed to do so damages should not be awarded.

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.

Janetx

Thank you so much Redx for providing the link regarding a counter claim...we hadn't thought of counter claiming..... but we are now...... would we have to wait to see if the court will strike the claim out first as the person in the link did?

Le_Kirk

Is your first paragraph part of your defence? If so, it needs to be incorporated into the defence and given a paragraph number. To me, it reads more like as witness statement (WS) and that is submitted later in the process. Suffice to add that in bullet point in the defence and then you can expand upon it in the WS.

Janetx

Hello Le_Kirk,
Thank you for your helpful comments. I have tried to implement your suggestions...any further thoughts?

Coupon-mad

#14 mentions a completely different firm, 'Initial Parking' (that is not a phrase, it's a company name!).

#14 also repeats your #8, but #14 is better. So delete #8 and re-number the rest.

Re the point #7 ''Contra proferentem rule'':

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

Does the sign say it has to be displayed 'on the dashboard' or 'in the windscreen' or where it has to be displayed?

If not, add to #7 that the sign fails to say where within the car the PDT machine slip has to be displayed, and the Defendant asserts that it was displayed in the car and that the angles of the photos have excluded showing it.

Also, you need to remove all ''I'' and change to third person ''the Defendant''.

Janetx

HI Coupon-mad,
Thank you so much for your help its very much appreciated, Yes the sign says.... ticket displayed on windscreen etc
Is there anything else that you think needs to go in?
We are so grateful for everyone's input.

Coupon-mad

Looks good to go but I would remove this (ancient case, not relevant any more):

This was evident in the case ParkingEye v Sharma, Case No. 3QT62646. It was identified that there is a contradiction between clause 3.7 where the landowner appoints ParkingEye as their agent and clause 22, where it states there is no agency relationship between ParkingEye and the landowner. This case was dismissed on the grounds that the parking contract was a commercial matter between ParkingEye and motorists who used the land. Again, this decision was followed in the case ParkingEye v Gardam, Case No. 3QT60598.