CEL claim - stages after CCJ set aside

KeithP

CliveTreeHorn said:

KeithP said:

That picture of the sign you have shown us appears to be on a fence outside a Morrisons store.
Whereabouts is that sign exactly?
The address and postcode at the top of the sign is elsewhere and appears to be that of a number of companies.

The car park serves the local Morrisons. 

The sign is within the car park on a brick wall. The same sign is on the information booth.

OK, I'll try again...
Where exactly is this local Morrisons?

Coupon-mad

Have you sent it yet? Don't get too close to your deadline. 

CliveTreeHorn

Concluding now. Email to court and coping in CEL. 
Defence, WS and exhibits.

Is that correct?

CliveTreeHorn

Ooo and cost schedule!

Coupon-mad

Absolutely!  

CliveTreeHorn

Thanks everyone for your help. We will see what happens next! 

Coupon-mad

CliveTreeHorn said:

Thanks everyone for your help. We will see what happens next! 

Can you show us the first dozen paragraphs so we know what's what, after the order of paragraphs was changed? NOT the whole template, we beg...please...so many people show us the entire template...eeek!

CliveTreeHorn

3. The Defendant did park in  Car Park, Denmark Hill, SE5 8RW on date. Initially, the Defendant attempted to purchase a digital parking ticket on the PhoneAndPay app. The app was not working correctly due to presumed technology issues, and would not accept the Defendants usual bank card when attempting to purchase the ticket and crashing. 

4. Therefore, the Defendant setup a second bank card on the app in order to purchase a ticket. A 1p transaction charge was registered, to finalise the setup of the new bank card. However when the Defendant attempted to purchase a digital ticket the app again crashed. 

5. On the car parking site, there is a 'information' booth however this was not open. 

6. As a result the Defendant made the decision to purchase a paper parking ticket from the ticket machine. Due to the time that has elapsed from the date, almost two years, the Defendant does not have a copy of this ticket. 

7. In respect of the Claimants Amended POC which stated 'there were many clear and visible signs in the car park advising drivers of the terms and conditions of use'. On the signs the terms and conditions are written in very small font at the bottom of the sign. There is not a visible sign as you drive into the carpark, and due to the size it would be very challenging to read the terms and conditions from a driver's seat within a car. 

8. Furthermore paragraph 5 of the amended POC states 'a contract was formed between the Claimant and the Defendant' this is refuted. No contract was ever agreed by the Defendant. 

9. Paragraph 5 of the amended POC also states 'the Defendant breached the contract, specifically by failing to obtain an electronic permit'. As stated in paragraph 6 of the defence the Defendant purchased a paper ticket from a ticket machine as what was permitted on the signage in the carpark and is the normal practice. If the purchasing of a paper ticket is not an acceptable method, why do the parking ticket machines exist and the signs detail the method. 

The signs state that the parking terms are offered by a different company: Atlantis FM LTD

10. The Claimant's sign states that their role is to 'enforce', 'monitor' and 'patrol' and it is clear that their limited function is to facilitate the terms offered by the principal, including 'contact the DVLA' and 'issue PCNs'. This limited function is confirmed in the Claimant's own Linked In page at https://www.linkedin.com/company/civil-enforcement-ltd where they proclaim 'Civil Enforcement Ltd process and administer Parking Charge Notices (PCN's) on the behalf of UK Small Businesses and Major UK Brands.'

11. Unlike in the Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67, there is no sentence in the signage that offers or attempts to create a contract between this Claimant and a driver. A parking management firm could use wording to make themselves personally liable on the contract and they could make a contractual offer themselves by saying 'by parking at this site you, the driver, are entering into a contract with us' (or words to that effect) but there is no such contract on the signs. In fact, at no point is a driver told that they are entering into any contractual relationship.

12. 'Atlantis FM LTD' is written at the top of the signs where the disputed terms are stated. Therefore, those terms and the licence to park is made by the principal, Atlantis FM LTD.

13. Therefore, unlike in ParkingEye v Beavis, this Claimant has placed their service, and themselves, in the position of an agent/broker/middle-man, making the bargain for another party and collecting monies (the parking fees from the machine) for that party. The Defendant avers that this Claimant does not retain nor pay VAT on the tariffs and they have no possessory title in this land. Fatally to their claim, the Claimant made no offer of a contract to the driver, at all. The Claimant is put to strict proof if their position is to the contrary of that stated by this Defendant, who takes the point that the principles established by the authority of Fairlie v Fenton (1870) LR 5 Exch 169 apply and there is no contractual relationship between this Claimant and the Defendant. 

CliveTreeHorn

Please be gentle, it was submitted yesterday and I cannot change ! 

Coupon-mad

That's very good!  Fairlie v Fenton should kill it and even a rookie Judge would see that point.

I predict they will discontinue.