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

buckminster

my updated version below which hopefully takes on board all the excellent advice - if anyone is able to provide any final comments, i would be grateful.

Skeleton Argument of Defendant

1.     I am Mr xx 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.

2.     This Skeleton Argument has been prepared to align with the request of Deputy District Judge xx. It supports the Defendants Witness Statement and is confined to three issues of law.

Impossibility of a Contract

3.     It is submitted that the Defendant made reasonable endeavour to comply with the process put forward by the Claimant to enter into a contract, in that the Defendant paid the required parking fee of £1.70, but ultimately was frustrated by the problems inherent in the ‘Pay by Phone’ system operated by the third-party company employed by the Claimant.

4.     The Defendants bank statement and its correlation with the records provided by the Claimant demonstrate compliance with the consideration element of the contract, but because of a failing of the Pay by Phone system which defaulted to previous recorded car registrations without offering the Defendant the opportunity to register his current car, or offering any form of assistance, the Defendant was thus prevented from registering his car – part of the contractual requirement being to enter a full and accurate vehicle registration – and therefore the contract terms were impossible to meet. Please refer to Exhibit SA-01, Exhibit SA-02 and Exhibit SA-03

5.     Once the Defendants payment had been accepted, he was then unable to use another method of payment - and it would be unreasonable to expect the Defendant to make a second payment - he therefore had no retrospective ability to register his car.

6.     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. Please refer to Exhibit SA-04.

7.     It is put forward that it is incumbent on the Claimant to ensure the ‘Pay by Phone’ system which they operate through a third party 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 (- it is to be noted 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 difficulties experienced by the Defendant).

Signage – Unclear and Inadequate

8.     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 in different locations. 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. Please refer to Exhibit SA-05.

9.     The Code of Practice v6 of the International Parking Community (of which the Claimant is a member), Section E Schedule 1, clearly states that “Text should be of such a size and in a font that can be easily read 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 of Practice, and incapable of forming, as claimed, a contract with drivers (unlike other signs held as capable of doing so – for example the sign in the Parking Eye v Beavis and Wardley case). Please refer to Exhibit SA-06.

10.  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.”

11.  The Contract Witness Statement provided in the Claimants Witness Statement makes no reference to the landowner, the landowners signature, nor the start and end date of the lease. There is no evidence that authorises the Claimant to issue private PCNs, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to issue PCNs ‘on behalf of’ the landowner on an agency basis.

12.  According to Section 43 of the Companies Act, a simple contract requires explicit or implied authority from both parties. Section 44 of the same Act requires two authorised signatories from each party for a document to be validly executed. 

Inflation of the Parking Charge and Double Recovery – an Abuse of Process

13.  It is an abuse of process for a Claimant to issue an inflated claim for a sum which it is not entitled to recover. Parking firms must choose between a ‘Beavis-level’ charge calculation or loss-based damages. A parking firm cannot seek to plead their claim in both.

14.  Where it is clear as a matter of law at the outset that even if a Claimant were to succeed in proving all the facts that he offers to prove, he will not be entitled to the remedy that he seeks, a trial of the facts would be a waste of time and money, and the Defendant submits that it is proper that this action should be taken out of Court as soon as possible.

15.  When considering the Claimant’s case the Court is invited to determine as a matter of law that the Claimant is not entitled to the remedy sought. An exaggerated claim such as this will always constitute an abuse of process that can be determined by a glance at the Particulars (before any facts and evidence are even scrutinised) and by applying the Court’s duty under s71 of the Consumer Rights Act 2015 (‘the CRA’) at the earliest opportunity. For the avoidance of doubt and to demonstrate that this claim is unfair from the outset, the official CMA Guidance on the CRA clarifies under ‘Disproportionate financial sanctions’ and ‘Indemnities against risk’

[https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf]

“Other kinds of penal provisions which may be unfair are clauses saying that the business can:

·        claim all its costs and expenses, not just its net costs resulting directly from the breach;

·        claim both its costs and its loss of profit where this would lead to being compensated twice over for the same loss; and

·        claim its legal costs on an ‘indemnity’ basis, that is all costs, not just costs reasonably incurred. The words ‘indemnity’ and ‘indemnify’ are also objectionable as legal jargon – see the section on transparency in part 2 of the guidance...’’ (p87 -5.14.3);

‘‘Terms under which the trader must be ‘indemnified’ for costs which could arise through no fault of the consumer are open to comparable objections, particularly where the business could itself be at fault. The word ‘indemnify’ itself is legal jargon which, if understood at all by a consumer, is liable to be taken as a threat to pass on legal and other costs incurred without regard to reasonableness.’’(p119 -5.31.7).

16.  The quantum claimed is unconscionable and the falsely added sum was buried in small print on the sparsely-placed car park signs. As such, the Defendant avers that the charge offends against Schedule 2 of the CRA, where s71(2) creates a duty on the Court to consider the fairness of a consumer contract. The Court’s attention is drawn (but not limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to be unfair and the CMA Guidance linked earlier, and the Defendant invites the Court to find this Claimant in breach.

17.  Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of costs. The sum also exceeds the maximum amount which can be recovered from a registered keeper as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’). It is worth noting that in the Beavis case, even though the driver was known, the Supreme Court considered and referred more than once to the POFA because it was only right that the intentions of Parliament regarding private PCNs were considered.

18.  It is pertinent that the Government has just recently passed the necessary act to enable a new Parking Code of Practice that “will create more consistent standards across the board which should eliminate dubious practices and create a single, independent appeals process” and hopefully avoid the unnecessary stress and labour incurred by the Defendant in responding to this claim, and many others like him. https://www.gov.uk/government/news/drivers-to-receive-greater-protection-against-rogue-private-parking-operators

Statement of Truth

I believe that the facts stated in this Skeleton Argument 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.

ParkingMad

Paragraphs 11 and 12 relate to no evidence of landowner authority, but they are in the section about signage. Should they be in a separate section?

Would it be better for the section 'Impossibility of a contract' to be titled 'Frustration of Contract' (since the contract would have been possible if the app had allowed you to change your registration before paying)?

Snakes_Belly

"11.  The Contract Witness Statement provided in the Claimants Witness Statement makes no reference to the landowner, the landowners signature, nor the start and end date of the lease. There is no evidence that authorises the Claimant to issue private PCNs, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to issue PCNs ‘on behalf of’ the landowner on an agency basis.

12.  According to Section 43 of the Companies Act, a simple contract requires explicit or implied authority from both parties. Section 44 of the same Act requires two authorised signatories from each party for a document to be validly executed." 

There is a danger that this looks like you have added in a fourth point of law. I would be inclined to ask Excel to evidence that they are the leaseholders as the document that they have provided is inadequate and I would included that at the end. You can always develop this when you are at hearing.

bargepole

  I am Mr xx 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.

Delete this paragraph. There should be no 'I' in this statement. There is also no such place as the 'Small Claims Court', this is the County Court. You are not making a statement of facts (that belongs in the WS), this is legal argument.

Statement of Truth

I believe that the facts stated in this Skeleton Argument 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.

Delete this as well. Again, it is not a statement of facts, and a Skeleton does not require a SoT. Just put your name and the date at the end, no signature required either.

Coupon-mad

https://www.gov.uk/government/consultations/parking-code-enforcement-framework/outcome/parking-code-enforcement-framework-consultation-response

Put that as the Government link instead, and read it and point out that the Government has indicated that parking charges are to be capped at £50 outside London (if this was outside London) mimicking the Local Authority levels.  Whilst this is not retrospective, it is a clear indicator that the direction of travel regarding private parking operators is that they cannot charge what they like.  Indeed Lord Neuberger said exactly that in Beavis at the Supreme Court:

 https://www.supremecourt.uk/cases/docs/uksc-2013-0280-judgment.pdf

''100. None of this means that ParkingEye could charge overstayers whatever it liked. It could not charge a sum which would be out of all proportion to its interest or that of the landowner for whom it is providing the service.''

Why have you not got ParkingEye v Somerfield in there?   HHJ Hegarty's words at 419 are a major point (although obiter, his rationale about adding layers of false/unjustified costs is persuasive on the lower courts).  Para 419 is quoted in the template defence, and comes from the High Court.  It MUST be in your skelly!

buckminster

hi all,
excel have not sent me their skeleton argument within the time frame defined by the judge - have just checked with the court and they haven't received anything either, however the hearing is still scheduled to go ahead. does this mean excel may still turn up? and is their case now substantially weakened?
again, any help gratefully received,

Le_Kirk

Make sure that you raise this as a preliminary matter before the hearing proper.  They should NOT get away with it, they are supposedly professionals!

RhodieX

@buckminster What was your hearing outcome ?  I ask since Excel have sent exactly the same WS & evidence they sent you.    Incidentally 0 - 2 Hrs parking was £1.50, by using the alternate pay option an additional 20p is taken by the 3rd party which is not advised anywhere on their boards.  

Umkomaas

RhodieX said:

@buckminster What was your hearing outcome ?  I ask since Excel have sent exactly the same WS & evidence they sent you.    Incidentally 0 - 2 Hrs parking was £1.50, by using the alternate pay option an additional 20p is taken by the 3rd party which is not advised anywhere on their boards.  

The OP hasn't been around here for over a month. I'd suggest sending them a PM, which should result in them receiving an email notification from MSE that you are trying to get in touch.