Adjourned Hearing - a Skeleton Argument Confined to 3 Issues of Law required

Coupon-mad

@bargepole may have it.

buckminster

i have drafted the following for my skeleton argument covering the first two issues of law - i would be grateful for any comments or feedback on the suitability of this, thanks:

Excel Parking Services Ltd. (Claimant)

v

x (Defendant)

Skeleton Argument of Defendant

I am Mr x, and I am the defendant against whom this claim is made. I wish to make clear that I am not legally trained and that I have no prior experience of the Small Claims Court process. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

I have prepared this Skeleton Argument following the request from Deputy District Judge xxx , and have condensed my previous Witness Statement and confined the argument to three issues of law.

Sequence of Events

29 October 2019 I visited Redruth and stopped at the Fairmeadow Pay and Display car park operated by Excel Parking, the Claimant. The weather was torrential rain, it was highly unpleasant to be outside, and there were very few cars in the car park. The car park had no card payment machine and I had no change, but decided to pay the required £1.70 using the ‘Pay by Phone’ method offered, as I have successfully done in other car parks. I entered my payment details as requested and was told that my payment had been processed. The automated message then provided me with a car registration number and asked me to confirm if this was my car registration; it was not my car registration and I responded as such. The automated message then provided me with a second alternative car registration number; this was also not my car registration number. At this point no further registration options were given, nor any options on how to enter my actual registration number, nor any further connection or helpline details, I was left with no further options and the call ended.

The onsite signage had numerous different sections, some in very small font, but no specific guidance for customers experiencing difficulties with the ‘Pay by Phone’ system. I knew that my payment details had been processed and therefore proof of purchase could be proven in the event of a problem, and given that no other immediate means of progressing the registration were available, I decided to help with my family who had been waiting patiently throughout the payment process. We then returned within the given time limit of 2 hours and proceeded on our journey.

06 November 2019 I was issued a parking charge notice from the Claimant.
10 November 2019 I politely appealed citing that I hadn’t been given opportunity to enter my car registration, and provided an extract of my bank statement showing the relevant parking fee (Exhibit XX-01),
27 November 2020 to 19 January 2020, I submitted five responses to the Independent Appeals Service process making clear that I had paid the required parking fee and that there had been a problem with ‘Pay by Phone’ system in operation.

I evidenced that my bank had confirmed that the unique transaction code of 524959 related directly to a transaction carried out at 12.41 on the 29th October 2019, matching exactly the time in question. The Claimant responded with payment records from their database showing that my car registration had not been recorded, but which did show that the only unregistered entry and only ‘Pay by Phone’ entry on the database matched exactly the payment time of 12.41 provided by my bank (Exhibit XX-02) and that the CCTV images provided by the Claimant as part of the parking charge notice show my car in the car park at this time (Exhibit XX-03);

I highlighted the issues with the automated ‘Pay by Phone’ system but the Claimant accepted no responsibility for the issues I incurred, instead citing that this was operated by a third-party company.

Impossibility of a Contract

I used reasonable endeavour to comply with the process put forward by the Claimant to enter into a contract, in that I paid the required parking fee of £1.70 but ultimately was frustrated by the problems inherent in the ‘Pay by Phone’ system being operated by the third-party company employed by the Claimant. My bank statement and its correlation with the records provided by the Claimant, demonstrate that i have complied with the consideration element of the contract, however because of a failing of the Pay by Phone system I was prevented from registering my car – part of the contractual requirement being to enter a full and accurate vehicle registration – and therefore the contract terms were impossible to meet. Once my payment had been accepted I was unable and unwilling to use another method of payment and had no retrospective ability to provide a registration.

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.

I would argue that it is incumbent on the Claimant to ensure the ‘Pay by Phone’ system which they use is fully functional to allow customers to make payment, and able to provide clear and simple guidance for customers on how to progress when a problem is incurred, rather than to resort to litigation (- I note that the ‘Pay by Phone’ payment system at Fairmeadow Pay and Display car park has since changed to allow car registration prior to confirming payment details, and thereby avoiding the difficulty I experienced).

Signage – unclear and inadequate

The signage located at the Fairmeadow Pay and Display car park is unclear and inadequate. It contains an excessive amount of text to be read and understood within the 10 minute grace period that the Claimant permits; much of the text is in a very small font that is impossible to read from a car; different information is shown on different signs. The Parking Charge is in very small font at the bottom of the entrance sign, buried amongst other wording in very small font. The signage is incapable of drawing a motorist’s attention to the charge or forming a contract with them.

The Code of Practice v7 of the Independent Parking Community (of which the Claimant is a member), Schedule 1, clearly states that “The size of the text on the sign must be appropriate for the location of the sign and should be clearly readable by a Motorist having regard to the likely position of the Motorist in relation to the sign". The signage is not as per the code, and incapable of forming, as claimed, a contract with drivers (unlike other signs held as capable of doing so – see for example the sign in the Parking Eye v Beavis and Wardley case).

The bar for clear parking terms on signage was set by Denning LJ in J Spurling Ltd v Bradshaw [1956] referring to the well-known 'Red Hand Rule' where hidden / unknown terms were held to be unenforceable: “Some clauses which I have seen would need to be printed in red ink, and or, with a red hand pointing to it before the notice could be held to be sufficient.”

third issue of law to follow. should this be "Inflation of the parking charge and double recovery – an abuse of process" or would it be more effective to make reference to the alleged landowner and lack of contract that @Fruitcake has highlighted? 

i need to complete this tomorrow so that i can deliver to the court on friday - again any help gratefully received.

Snakes_Belly

As I pointed out I am not legally qualified but these are my thoughts,

I would not mention the appeal to IAS. I don't think that it adds anything and it could detract. 

Add image of PE sign to bundle (if not there already)

Regarding the other options I would probably go for double recovery/abuse on the basis of damage limitation if the case does not go in your favour you should be able to get this £60.00 removed.

I would though put Excel on strict notice to provide the actual lease or landowner authority as there is no evidence that they have the authority to instigate court proceedings. That WS that they provided is meaningless.
 
 

Snakes_Belly

This was the benchmark sign. (Beavis Case) 

bargepole

Here is the link to Jolley -v- Carmel: https://www.dropbox.com/s/u9pt8g1euna0gzt/Jolley -v- Carmel.pdf?dl=0

A Skeleton Argument should be written in the third person 'It is submitted that the Defendant is not liable etc...', rather then 'I did this and that'.

The effort above is more like a Witness Statement, setting out a sequence of factual events. A Skeleton should simply be points of law, and how they apply to the particular case. I would completely rewrite it, but am not offering to do so as I am fully booked with work for the rest of the week.

Snakes_Belly

I do wonder if you should point out that this matter would be treated very differently when the new CoP and single tier appeal is introduced. 

You have drilled down but just need to put it into the format that Bargepole has mentioned. I would still keep a copy to use as a crib sheet.  

buckminster

thanks all - super helpful!

1505grandad

"29 October 2019 I visited Redruth and stopped at the Fairmeadow Pay and Display car park.........."

"The Code of Practice v7 of the Independent Parking Community (of which the Claimant is a member), Schedule 1, clearly states that......."

IPC  =  International Parking Community and their CoP V7 is effective as follows:-

Code of Practice V7 November 2019Download

(.pdf, 2.40MB)Version 7 is effective as of 01.11.2019

Therefor you need to reference V6

Le_Kirk

bargepole said:

A Skeleton Argument should be written in the third person 'It is submitted that the Defendant is not liable etc...', rather then 'I did this and that'.
The effort above is more like a Witness Statement, setting out a sequence of factual events. A Skeleton should simply be points of law, and how they apply to the particular case. I would completely rewrite it, but am not offering to do so as I am fully booked with work for the rest of the week.

buckminster said:

thanks all - super helpful!

I was going to post the same as above but @bargepole beat me to it.  Use the comment by @bargepole to reduce your script to three defence points in the third person and keep them short, such as frustration of contract due to PDT shortcomings, signage and impossibility of a contract or similar.

Coupon-mad

Yes, remove the witness statement stuff about the 'sequence of events' etc.

The 3rd legal argument should definitely be inflated charge/double recovery of costs that were never actually incurred.