Disputing a ticket - frustration of contract?

Vanadesse

KeithP said:

With a Claim Issue Date of 22nd October, you have until Wednesday 10th November to file an Acknowledgment of Service. Do not file an AoS before 27th October, but otherwise there is nothing to be gained by delaying it. 

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an AoS in a timely manner, you have until 4pm on Wednesday 24th November 2021 to file your Defence.

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

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

I did read that post and saw about email but also saw it saying to make sure you print and post because of formatting so I wasn’t 100% sure but if I email over a pdf then formatting obviously won’t be an issue.

I’ll do the acknowledgment on the 27th or just after. I’ve started my defence, I posted a link above. Not sure if it’s ok or not though. 

Redx

Some information for you

The post by Bargepole was made several years ago , before the CCBC allowed email and before covid19 too , so whilst still valid for postal submissions , our latest advice is what KeithP told you , he tells everyone else too , you can trust his posts

These days , emails are preferred unless the courts order hard copies instead , so less printing and less costs , but royal mail can still be used , although we do not recommend it , too many pitfalls ! We also never recommend that you submit a defence on the MCOL website , because those issues have never been fixed !

The defence template post by coupon mad is the preferred template with little work required from the regulars here , if we are only checking a few paragraphs , not a complete Defence ! Few people if any will comment on a bespoke off piste Defence cobbled together from Several sources

Few people here will click on links , even Dropbox ones , the difficulties doing so from a tablet , iPad or mobile device mean we don't bother , plus we would have to find the changes compared to the Defence by coupon mad before starting to check those changes ! Ergo , we don't bother at all ( and that lady is overworked anyway )

What we ask is twofold

1) You follow the advice we give you and don't go off piste

2) You adapt the template paragraphs 2 and 3 , into say 4 or 5 bespoke numbered paragraphs , then post only those proposed paragraphs below , on the forum itself , no links ! For critique

Until you do things our tried and tested way , less than a handful of people will bother to help you , but it's your choice , I just thought I would explain the 2021 system to you , to try to get as many heads as possible to assist you , good luck

Le_Kirk

Vanadesse said:

I did read that post and saw about email but also saw it saying to make sure you print and post because of formatting so I wasn’t 100% sure but if I email over a pdf then formatting obviously won’t be an issue.

I’ll do the acknowledgment on the 27th or just after. I’ve started my defence, I posted a link above. Not sure if it’s ok or not though. 

The formatting issue is if you try to submit your defence via MCOL and put it in their silly box.  E-mail is far better.  

Vanadesse

Redx said:

Some information for you

The post by Bargepole was made several years ago , before the CCBC allowed email and before covid19 too

These days , emails are preferred unless the courts order hard copies instead , so less printing and less costs , but royal mail can still be used , although we do not recommend it , too many pitfalls !

The defence template post by coupon mad is the preferred template with little work required from the regulars here , if we are only checking a few paragraphs , not a complete Defence ! Few people if any will comment on a bespoke off piste Defence cobbled together from Several sources

Few people here will click on links , even Dropbox ones , the difficulties doing so from a tablet , iPad or mobile device men we don't bother , plus we would have to find the changes compared to the Defence by coupon mad before starting to check those changes ! Ergo , we don't bother at all ( and that lady is overworked anyway 

What we ask is twofold

You follow the advice we give you and don't go off piste

You adapt the template paragraphs 2 and 3 , into say 4 or 5 bespoke paragraphs , then post only those proposed paragraphs below , on the forum itself , no links ! For critique

Until you do things out tried and tested way , less than a handful of people will bother to help you , but it's your choice , I just thought I would explain the system to you , to try to get as many heads as possible to assist you , good luck

Thanks for the response. I don’t have a way to upload from what I can see other than a Dropbox link so I’ll just do this bit by myself, it’s fine. I know I can copy and paste but it was a general look over the whole formatting etc too but it’s fine, no problem at all. I understand and appreciate everything you’ve said there, my defence was based on one from within the newbie thread or claim thread that was listed as a very good example so I took that as implying it was a good one to adapt. Some of his paragraphs were wordier versions than the standard template so I used the simplified versions from that. Basically the only bits added in that are bespoke are what I’d already posted on here previously but didn’t send off to them. 

Vanadesse

I want to start this next reply with an apology. I feel that my last couple of replies come across in a way that wasn't intended and I seem quite ungrateful and unappreciative of the responses and seem like I expect the unreasonable from people who do this purely to help and for no reward or thanks beyond that. That's not the case, I really do appreciate all the time that people have put into this so far and without it, I probably would have just paid up by now so I honestly can't thank you enough. It's been an extremely long half term, I'm ill and I'm beyond exhausted and now this has added to the stress and I feel that I've come across in a way that I didn't intend so want to apologise for that because I really do appreciate all the time that people give on here. I felt and still do feel to some extent a little overwhelmed by it all and should have taken more time to read things a little better and let it sink in before posting. Now that I have, I've adapted my defence based purely on the standard template rather than the one that was listed as a really good example. I will post my adapted paragraphs below following the further advice from @Redx (apologies that I didn't know the etiquette, I'd seen others post links so assumed that was the way to do it). If anyone is happy to give some time to read over and offer advice, I would appreciate it but if not then I completely understand.

One specific question though - would each paragraph/point be numbered as in my below post or would I leave them without numbers so that it's all section 2? If that makes sense. I'm not quite sure about whether it's just too much (it's a lot more than 4 or 5 paragraphs!) and whether the way I've laid it out is a good thing because it makes it easier to follow or whether it's going too off piste.

Vanadesse

The facts as known to the Defendant: Circumstances surrounding the alleged liability

 

1.     Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, it is the Defendant’s position that no contract was entered into with the Claimant, whether express, implied, or by conduct. Therefore, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms. Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

 

2.     This Parking Charge Notice has been issued due to the malfunction of my car during heavy rainfall on 8th March 2016. I was driving home with my 10-month-old baby in the car when my wiper blades suddenly stopped working whilst driving along the A6043. As I was just outside the entrance to Ashton Retail Park, I was able to, with some difficulty, manoeuvre into the site and into a parking space. Once stopped, my engine remained on to keep the heating on in the car and I called the RAC who informed me that they were to attend within 10-15 minutes. Given the immediate response from the RAC and my sleeping infant in the car, I did not leave my car in heavy downpour to investigate the parking at the site, particularly given that I had no cash on me at the time. The RAC took longer to attend, they then repaired the nut that had come loose on my wiper motor, and I left the site promptly afterwards.

 

The facts as known to the Defendant: initial appeal and further communications

 

3.     An appeal was made to Excel Parking Services Limited on 24th March 2016 giving the full circumstances listed above as the reasons for my ‘overstay’. I also provided a Customer Assistance Report from the RAC that stated that I called them at 15:01 and that the breakdown was completed at 15:43. This appeal was refused by Excel Parking Services Limited, although no documentation of this was received at the time. The first I was aware of this rejection was when a letter chasing payment was received on 24th May 2016. The letter of rejection was finally provided by Excel Parking Limited Services on 21st November 2016, almost 8 months after the appeal was lodged.

 

4.     Communication with Excel Parking has been extremely poor throughout this ordeal, with responses taking several weeks at best. My communication regarding the rejected appeal was only responded to by Adam Glasby (Trainee Claims Handler) on the 30th of June 2016, when I queried why I hadn’t received the appeal notice or why my breakdown evidence had not been accepted, I was told that I would be contacted within a few days. Yet no contact was made until 18th November 2016 when BW Legal sent yet another harassing letter chasing payment for a debt that I deny liability for.

 

5.     Within my appeal, Excel Parking claimed that had I telephoned the helpline and explained the situation then my free period would have been extended. Again, I refer you to the case of Jopson v Homeguard, where within the judge’s findings it is stated that Homeguard Services made similar statements to the defendant but that the notice said nothing about exemption being granted upon request, and that the reference to “all enquired relating to parking in this area should be directed to 14 services” was insufficient in the Judge Harris’ judgement, as an indication that there was scope for periodic exemptions on request. Both your entry sign and tariff sign state that a valid pay & display ticket must be purchase for a stay longer than 30 minutes, advising only that drivers contact the helpline in case of machine failure. Therefore, this can be directly compared to the finding as in this case.

 

6.     Communication from Excel Parking and their initial legal representation, BW Legal, has been poor and inconsistent. They have ignored attempts to resolve this issue and the evidence of my breakdown that was provided and instead continued to bombard me with numerous letters that have demanded payment and threatened court action. These letters have led to a feeling of harassment, stress and anxiety in the Claimant that has had a genuine impact upon their mental health at times due to the inability to resolve the issue, despite continued attempts with each ‘debt recovery’ letter.

 

The facts as known to the Defendant: Independent Appeals Service appeal

 

7.     Due to the lack of communication regarding my appeal rejection and the poor communication in response to other communication, Adam Glasby (Trainee Claims Handler) re-opened the opportunity to appeal to the Independent Appeals Service (IAS) on 18th November 2016. An appeal to the IAS was made on 5th December 2016.

 

8.     Whilst in their response to an IAS appeal Excel Parking claimed that my attending to my car malfunction constituted as parking, however I must bring your attention to the appeal court case of (Laura) Jopson v Homeguard (Services). The Shorter Oxford Dictionary defines parking as “To leave a vehicle in a carpark or other reserved space” and “To leave in a suitable place until required”, a definition also stated within this case where Judge Harris QC found that the concept of parking, as opposed to stopping, is “that of leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration, such as changing a wheel in the event of a puncture.” Within this judgement, Judge Harris QC’s findings clearly state that attending to a small vicissitude such as a flat tyre is not parking. It is clear that attending to failed windscreen wipers during heavy rain, during a time in which I did not leave my car nor switch my engine off constitutes as a small vicissitude. On this basis, I cannot be considered as parked and therefore am not liable to the charge stipulated within the PCN or any further correspondence.

 

9.     The IAS rejected the appeal that was made on 5th December 2016, stating:

 

"While I note the Appellant's comments, the guidance to this appeal makes it clear that I am bound by the law of contract and can only consider legal challenges not mistakes or extenuating circumstances. This is a car park in which a 30 minute free period of parking is offered, after which a ticket must be purchased or the driver must leave the site. Having had sight of the contractual terms I am content that the signage is neither misleading nor unclear. On the evidence provided it is clear that the Appellant stayed on site for 46 minutes without obtaining a valid ticket.

I am satisfied that the Operator has proven their prima facie case. Whilst having some sympathy with the Appellant's circumstances, once liability has been established, only the Operator has the discretion to vary or cancel the parking charge based on mitigating circumstances. Accordingly this appeal is dismissed."

 

However, this response from the IAS clearly demonstrates the inefficiency of the service as they were unable to recognise frustration of contract as the legal challenge that it is.

 

The facts as known to the Defendant: Frustration of contract

 

10.  I deny liability for this charge based on frustration of contract. The basis of this claim/charge is that a contract was formed between Excel Parking and the driver, in which I was granted the consideration of free parking for 30 minutes, in return for a promise to leave within the 30 minutes unless further payment was made. Even if I did enter into contract with Excel Parking and the landowner, reasons why I believe this not to be the case are stated above, this contract must be declared as frustrated on the basis of my breakdown and inability to leave the car park within the time expected.

 

Frustration will occur when:

An unforeseen event occurs after a contract is entered into which is outside the control of the parties and makes the contract either:

Physically or commercially impossible or illegal to perform; or

Transforms performance of the contract into something so radically different from the intended purpose that it would be unfair to hold the parties to their obligations

 

The unforeseen delay to the attending breakdown mechanic, who should have been with me within 10 minutes as he was sent straight away, was outside of the control of both parties. Having no cash on me to pay for parking, even if I had realised the free time has expired, meant that the only physically possible option would have been for me to leave the car park with malfunctioning wiper blades during heavy rain. Given that fully functioning wiper blades are required for a car to pass an MOT, my car at that moment in time could not be deemed as roadworthy and therefore I could not fulfil my legal requirements as a driver and the driving of the car in that condition would have meant that driving the car to leave the car park would have been illegal. Please see Fibrosa Spolka v Fairbairn as precedent of where the contract becoming illegal to perform it will frustrate the contract.

 

The facts as known to the Defendant: Lack of landowner authority evidence

 

11.  No contract that gives Excel Parking authority to issue charges on their behalf has been provided at any stage and as such, I cannot ascertain whether Excel Parking indeed had any authority to issue such a charge or that they acted within the boundaries of any contract that may have been in place. This contract has been requested to ascertain the details and whether Excel Parking have indeed acted within the authority given to them as it has been brought to my attention that the free time period dictated by the Excel Parking signage may not match the contract between themselves and the landowner, therefore indicating that Excel Parking may be acting outside of their authority, a point in which previous POPLA appeals have been granted at this site.

 

The facts as known to the Defendant: Inadequate signage to form a contract

 

12.  The signage on entry to Ashton Retail Park was insufficient to form a contract. There were a number of random signage that were distracting and large in comparison to Excel Parking’s small sign, where time could not be taken to see these clearly whilst driving in from a dual carriageway, nor could they be seen or read clearly during heavy rain, with surrounding foliage and distraction.

 

13.  Due to the time between the alleged contravention and the submission of the Claim Form, eyewitness photos have not been able to be taken by the Defendant. However, photos have been provided using Google Maps. It is reasonable to assume, on the balance of probabilities, that the site entrance and signage remained the same between the provided Google Maps photos taken in July 2015 and June 2016. Given the assumption that the signage did not change, it can reasonably be assumed that this represents the layout and signage at the time of the alleged event and that when the factors of the time of day, weather conditions and vehicle failure are considered, it would have made it impossible for the driver to see the signs.

Redx

The above seems to be a witness statement , not a Defence ( witness statements tend to be linked , but not concise defences )

You should use the template defence and concisely adapt paragraphs 2 and 3 , then post only those paragraphs below

2 is about liability , or not , as keeper and driver , Keeper not driver , or keeper but driver unknown , so usually one or two sentences only , see other threads for examples

Paragraph 3 is adapted into one or more numbered paragraphs , typically 3 or 4 concise paragraphs , all numbered individually

The words My , Me , Myself and I are not used , just defendant and claimant !

Keep everything brief , concise , no war and peace , read half a dozen recent claim threads , see what they wrote

Bear in mind that if your draft is longer than what I said , or includes words that are not said , it's incorrect

This is why we want to only see your half a dozen numbered paragraphs , not the rest of the template , it's your homework being checked , nothing else !

The final paragraphs that are approved are slotted into the template , replacing 2 and 3 , then renumbering takes place from the old 4 onwards

This isn't as difficult as it seems

Now please try and do it the way I have outlined , because until you do , little feedback will occur , because we are now using this system for 99% of cases , except say Parking Eye cases ! Which yours isn't

So more like the advice given in this thread for 2 and 3

https://forums.moneysavingexpert.com/discussion/6300429/court-claim-form-after-2-years-help-appreciated/p2

Vanadesse

Redx said:

The above seems to be a witness statement , not a Defence

You should use the template defence and concisely adapt paragraphs 2 and 3 , then post only those paragraphs below

2 is about liability , or not , as keeper and driver , Keeper not driver , or keeper but driver unknown , so usually one or two sentences only , see other threads for examples

Paragraph 3 is adapted into one or more numbered paragraphs , typically 3 or 4 concise paragraphs , all numbered individually

The words My , Me , Myself and I are not used , just defendant and claimant !

Keep everything brief , concise , no war and peace , read half a dozen recent claim threads , see what they wrote

Bear in mind that if your draft is longer than what I said , or includes words that are not said , it's incorrect

This is why we want to only see your half a dozen numbered paragraphs , not the rest of the template , it's your homework being checked , nothing else !

The final paragraphs that are approved are slotted into the template , replacing 2 and 3 , then renumbering takes place from the old 4 onwards

This isn't as difficult as it seems

Now please try and do it the way I have outlined , because until you do , little feedback will occur , because we are now using this system for 99% of cases , except say Parking Eye cases ! Which yours isn't

I have to be honest and say that I have found the difference between the two a little difficult to understand and wasn’t quite sure what level of detail to go into within the defence. I will take another look and try and find some recent claim threads to look at examples of. Thanks for your feedback. 

Redx

Read this one , it's a different company etc but a good example of how a defence draft evolves and why we only require a few paragraphs

https://forums.moneysavingexpert.com/discussion/6263482/civil-enforcement-ltd-court-claim/p3

Look at the difference in wording and length

Vanadesse

Thank you, I will take a look at that now. This was what I had looked at initially but have now seen his defence and WS separately, which is helpful too: https://forums.moneysavingexpert.com/discussion/comment/77614685/#Comment_77614685