Letter of Claim

Have had to switch to my mobile as the site does not seem to like my government laptop!

Thank you Keith. AOS was completed and sent 15/5/19.
I am in holiday 26/5-7/6 so am hoping to have sent off defence 25/5 so as to enjoy holiday without pressures! I will post what I've done so far...

With thanks to Nulacola and indeed the support they have received from the forum to put together their defence… I have cribbed from their document and amended to personalise. Please can I have thoughts on my defence.

The Claim form says:

The Claimant’s Claim is for the sum of £106.00 being monies due form the Defendant to the claimant in respect of a Parking Charge Notice (PCN) for a parking contravention which occurred on xx/xx/xx in the private car park/and located at Lusty Glaze (Parking) xxx registration xxxxxxx.

The defendant was allowed … 28 days… but fialed to do so.

Despite having demand… failed to settle their outstanding liability.

The claim also includes statutory interest…, per annum (a daily rate of £0.02).

The claimant also claims £60 contractual costs for terms and conditions.

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The PCN identifies: Ticket Incorrectly Displayed Face Down as “Issue Reason”.

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IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

KBT Cornwall Limited CAR PARKS (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date Lusty Glaze Car Park, Newquay, TR7 3AE, and had a valid permit to be parked.

3 The driver checked the ticket after placing it on the dashboard, and it was clearly displayed. The ticket has flipped or blown over after the driver left the vehicle, perhaps by strong winds through the ventilation system. This ‘force majeure’ was caused by severe weather outside the control of the driver and not something which should be a matter for either party to be bound by, nor for either party to benefit from, in terms of any 'charge' or penalty.

4 The term, ‘ticket incorrectly displayed face down” (this is identified as the issue reason) is not transparent per Section 68 of the CRA 2015. Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt. A valid ticket was displayed in the front windscreen of the Defendant’s vehicle. If the Claimant wanted to impose a term to continuously display permits, then they should have drafted clear terms to that effect. Fluttering ticket cases have been ruled by PATAS adjudicators in Council PCN adjudications as requiring specific terms to 'continuously display' or there is no contravention. The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

5 It would be reasonable to expect a parking firm, as a purported service provider in a customer car park open to the general public, to provide non-flimsy tickets and a method of attachment such as a sticky or double sided ticket - where they know this is a repeated issue. The defendant includes the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' in this defence, because the Supreme Court (and the Court of Appeal Judges) in ParkingEye Ltd v Beavis [2015] UKSC 67 were happy to draw similarities with Council PCNs as detailed in points 6 and 7.

6 'In DB05057D the adjudicator said: “…having seen the original ticket I note that it is made of rather thin paper which is likely to be dislodged when a car door is shut. It may be that the Council would argue that it is the driver's responsibility to ensure that the ticket is on display when the vehicle is left, but on the other hand if it chooses to issue pay and display tickets made of such thin paper it must expect that now and again this type of situation will arise.”

7 In HV05040D the adjudicator accepted the appellant’s evidence that she had displayed the ticket on the dash and checked after closing the door that it was still there. He said: “I am not aware of any signs in the car park suggesting the use of adhesives by motorists when parking their cars."’

8 The claim is brought for a parking contravention, i.e. breach of contract. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

9 Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

10 The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

11 The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

12 The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The £100 is for breach of contract. The claim includes an additional £60 in damages contractual costs, also for breach of contract, which appears to be an attempt at double recovery. Added costs/damages were also deemed unrecoverable in the Supreme Court case of Beavis, which allowed only the parking charge itself (£85) due to compelling facts about clear signs, a legitimate commercial interest and deterrent value in encouraging turnover of spaces. None of this applies to this claim, which is wholly meritless due to the Claimant's failure to similarly disengage the penalty rule.

13 In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date