'Fluttering Ticket' draft defense letter for review

Fruitcake

All you need to say is that the defendant paid for a ticket and placed it on the dashboard in accordance with the signage Ts and Cs.

This case from 2016 might help.

Parking Prankster: Search results for sticky (parking-prankster.blogspot.com)

Liliput_7

Coupon-mad said:

The one you linked isn't a defence, it's a POPLA appeal bit has a useful line or two, which is all you need to add to #2 and #3 of the template. 

We just wanted you to stop blaming yourself and ruining a decent defence stance by talking about 'being in a rush' etc.  You would NOT have deliberately placed a ticket upside down and agreed to pay £100 for doing that!  You probably placed it the right way up when you exited the car and maybe the wind caught it as the door closed, or maybe the ticketer rocked the car.

Thanks again for your advice last week, after a small break from feeling angry with all parking companies and in fact the human race in general, I've had another stab at my defence removing anything that might admit I'm to 'blame'.

Is this a better attempt? 

The facts as known to the Defendant:

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question, but liability is denied. It is admitted that the Defendant was the driver of the vehicle.

3.       The Defendant purchased, and still has in their possession, a valid parking ticket for the period the vehicle in question was parked at the location. Given the non-adhesive nature of the ticket, it could not be securely fixed to the window, therefore the defendant placed the ticket correctly on the dashboard. The defendant has no knowledge of when or how the ticket was flipped upside down. A valid serial number is visible on both sides of the ticket, which would have enabled the parking attended to confirm the validity. The orientation of the ticket was not a condition specified or agree to within the terms and conditions on the signage at the carpark. The terms and conditions on the sign next to the parking meter were blanked out. The defendant has photographic evidence which confirms that this was the case.

Would I be better to say 'The terms and conditions on the signage were blanked out.'  Rather than specifying the one next to the metre? The photo I have states 'EE SIGNS ON SITE FOR FULL TERMS & CONDITIONS' then lots of small print that's covered in tape.  I'm wondering if by referring specifically to the one 'next to the parking meter' leads to a response suggesting I should have looked elsewhere for other T&Cs. 

Any additional advice really welcome, thanks again

Le_Kirk

The orientation of the ticket was not a condition specified or agree nor agreed to within the terms and conditions on the signage at the carpark, moreover, the terms and conditions on the sign next to the parking meter Pay & Display Terminal (PDT) were blanked out. The defendant has photographic evidence which confirms that this was the case.

Change as above.  If you used a particular PDT, it would be reasonable to look at and read the T&Cs on it, not to have to go tearing around the car park to read the signs on all and every PDT.  I do though, have an issue with your statement that would lead anyone to suppose you had seen the T&Cs because you refer to them specifically to say that placing the ticket in a particular orientation was not part of the T&Cs.  If you saw and read them somewhere, is it relevant that they were covered up on the PDT?

Liliput_7

Le_Kirk said:

The orientation of the ticket was not a condition specified or agree nor agreed to within the terms and conditions on the signage at the carpark, moreover, the terms and conditions on the sign next to the parking meter Pay & Display Terminal (PDT) were blanked out. The defendant has photographic evidence which confirms that this was the case.

Change as above.  If you used a particular PDT, it would be reasonable to look at and read the T&Cs on it, not to have to go tearing around the car park to read the signs on all and every PDT.  I do though, have an issue with your statement that would lead anyone to suppose you had seen the T&Cs because you refer to them specifically to say that placing the ticket in a particular orientation was not part of the T&Cs.  If you saw and read them somewhere, is it relevant that they were covered up on the PDT?

Thank you  
I'd seen the line about the orientation not being specified in a different defence and thought it might help mine, i.e. no T&Cs were specified at all so definitely didn't specified orientation. But I agree with your advice, it now seems contradictory. So if I'd removed that it would read as follows:  

The Defendant purchased, and still has in their possession, a valid parking ticket for the period the vehicle in question was parked at the location. Given the non-adhesive nature of the ticket, it could not be securely fixed to the window, therefore the defendant placed the ticket correctly on the dashboard. The defendant has no knowledge of when or how the ticket was flipped upside down. A valid serial number is visible on both sides of the ticket, which would have enabled the parking attended to confirm the validity. The terms and conditions on the sign next to the Pay & Display Terminal (PDT) were blanked out. The defendant has photographic evidence which confirms that this was the case.

Thank you! 

Le_Kirk

That looks OK.

1505grandad

A suggestion:-

Para 2  -  perhaps amend to:-

"It is admitted that the Defendant was the registered keeper and driver of the vehicle in question, but liability is denied."

  

Then you are denying liability both as RK and driver.

Liliput_7

On to the next step! I'm just preparing my witness statement for my court date next month.

Once again, I feel completely overwhelmed, out of my depth and very anxious about it all, but I am determined to try to keep on fighting! 

Using the advice on the sticky newbie post, and the example it directs us to, I have attempted a draft of my witness statement. 

If anyone could cast an eye over it quickly and give some feedback I'd be so grateful, I have tried to remove anything that's not relevant to my case, but not sure if there is other stuff I Should be adding back in. 

As recommended, I have this in a PDF, collated with all my exhibits, but I'm a newbie to mse in general and cant work out how to attached it for review. 

Thanks so much for all your help! 

1.       I am ******, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge

 

2.       In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated, and I will say as follows:

 

Sequence of events and signage

3.       On arrival to the carpark, after finding a suitable place to park, I endeavoured to confirm the terms and conditions of the carpark.  The terms and conditions on the sign next to the Pay & Display Terminal (PDT) were blanked out, as seen in exhibit xx-01.  Each sign directed the reader to other signs for “full terms and conditions” leaving me unclear as to how to access the full terms

 

4.       I purchased a valid ticket and, unable to attach it securely to my windscreen because it was non adhesive, placed it on my dashboard. Exhibit xx-02

 

5.       When I returned to my car, the ticket was flipped upside down. I have no knowledge of how it became flipped upside down. A valid serial number is visible on both sides of the ticket, which would have enabled the parking attendant to confirm the validity. However, I received a PCN (Exhibit xx-03) stating that no ticket had been purchased.

 

6.       The claimant claims that the defendant agreed to pay the PCN within 28 days. This is not correct, I appealed the PCN but was told no details were available to inspect. This is also incorrect, as shown in Exhibit xx-04, my valid ticket includes a serial number on the reverse which would have been visible.

 

7.       I was then asked to pay an inflated charge of £160.

 

8.       A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and ‘bound to be seen’. I have included a copy of this sign in exhibit xx-05 for comparison. In this case, the signage fails to adhere to the standards laid out by the relevant accredited parking association, the International Parking Community (‘IPC’).

 

Abuse of process – the quantum

9.       The claimant has added a sum disingenuously described as ‘administration and recovery fee’. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process – see exhibit xx-07 – transcript of the Approved judgement in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

 

10.   Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to lack of any facts or evidence

 

11.   The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye’s earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html

''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.'

 

12.   This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both.

 

13.   This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (exhibit - xx-10), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.

 

14.   Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only is the added vague sum not stated on the notices at all (despite the Claimant claiming it is in their Witness Statement in writing and by appending signage that does not exist at the car park), but the official CMA guidance to the CRA covers this and makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs.

 

CPR 44.11 - further costs

15.   I am appending with this bundle, xx-07, a fully detailed costs assessment which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11). In support of that argument, I remind the court that I appealed and engaged with the Claimant at every step and they knew all along that the tariff has been paid. Not only could this claim have been avoided and the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes double recovery.

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

16.   As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching online, processing and preparing my defence plus this witness statement. I ask for my fixed witness costs. I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

Statement of truth:

I believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

KeithP

So we now have your full name, and so does everyone else who reads these forums - including the parking companies and their solicitors.

Coupon-mad

A better WS example is the recent one by @jrhys, although he missed out the point of putting the Claimant to proof of their standing/landowner contract.

Liliput_7

Coupon-mad said:

A better WS example is the recent one by @jrhys, although he missed out the point of putting the Claimant to proof of their standing/landowner contract.

Thank you, I'm pretty much out of energy for it all, but I will try to look at this tomorrow.