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Claim Form Received
Comments
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I would remove your 1, 2 and 3 as we no longer suggest a long 'preliminary matters' intro. See bargepole's concise defences instead.
Your #6 and #7 should be #1 and #2. No need for a heading 'background' though.
Then as your new #3, explain what the 'trivial error' was, as you understand it. Your defence at the moment doesn't talk about the alleged contravention, and it needs to deal with it.
I would also remove your #8 which adds nothing to the defence, and remove #13 as you cannot deny them interest, if they win.
You need a statement of truth at the end, then your name signature & date.
Change this, near the end:10. The claimaint seeks £155. This is an extravagant and unconscionable penalty, which is unforcable, particularly because the Defendant has shown that he did purchase a valid ticket, the claimant has suffered no loss, and because any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.
11. £60 of the £155 is presented at times as contractual charges and at others at legal fees (which amounts to double charging if the former, which the PoFA Schedule 4 specifically disallows) or fees that are not recoverable in Small Claims Court.
12. The Claimant has claimed an additional £50 legal representative’s cost on the claim form, despite being well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. The Defendant also has the reasonable belief that the charges have not been invoiced and/or paid and that due to the sparse particulars the £50 claimed for filing the claim has not been incurred either. This appears to be an attempt at double recovery as a way to inflate the value of the claim. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.
12.1 The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; “JUDGMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS”.. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.
13. The Defendant denies that the Claimant is entitled to any interest whatsoever.
...to this (changing the sums to show the full £ claimed, on the right of the form):
https://forums.moneysavingexpert.com/discussion/comment/75304578#Comment_75304578
Show us what you get as your next draft, after all that!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Hi Everyone,
Many thanks for your suggestions so far, I am extremely grateful!
Please find Draft Defence 2! It's quite a re-write, incorporating the suggestions received and in posts linked to in the suggestions.
1. It is admitted that the Defendant was the driver of the vehicle in question at the time of the alleged incident.
2. The Defendant paid and displayed a ticket when the car was locked and left parked. The ticket gave the Defendant a licence to park for 1 hour, from XXX to XXX on XXX.
3. The Defendant went about his business, returned and left the car park within the period specified on his ticket.
4. The Defendant found the PCN, stated issued at XXX [within the licence to park duration] at home on his car later that day.
5. The Defendant noted the PCN, which stated a failure to display a valid ticket as the reason for issue. The Defendant looked for,and found, the valid ticket on the passenger seat.
6. It is assumed by the Defendant (based on the position of the ticket and by implication from the Claimaints correspondence) that his ticket fell off (at some point between placement on the dashboard and issue of the PCN) but it remains possible that it was on the dashboard, but was in some way not valid.
7. Neither the Claimant’s particulars of claim, PCN or correspondence specify why a PCN has been issued. This prevents the preparation of a specific defence (ticket not valid, or ticket not displayed).
8. The Defendant wrote to the Claimant shortly after the incident providing evidence of a valid ticket and requesting:
a. Proof that issuer of the PCN is entitled to manage parking on behalf of the land owner in that area
b. Details of the landowner
c. A copy of the parking contract which the Claimant alleges entitles them to seek additional charges.
d. Any photographs of my vehicle
The Claimant acknowledged the evidence of a valid ticket; declined to let the matter drop and did not respond to any of the above requests.
9. The Particulars of Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached and fail to fulfil CPR Part 16.4 because it fails to establish a cause of action which would enable the Defendant to prepare a specific defence and are not clear and concise as is required by CPR Part 16.4 1(a).
10. The Defendant asks that court makes an order requiring the Claimant to file compliant Particulars, to include at least the following:
a. An explanation as to the exact nature of the claim
b. A copy of any contract (e.g. copies of signage)
c. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
11. As both the grounds on which the Claimant believes both that the contract entitles them to the original sum of £85 and the nature of the alleged breach of contract are unclear, the Claimant is put to strict proof that the contract, if breached, would allow them to seek the sum claimed.
12. Parking Eye Ltd v Beavis [2015] UKSC 67 showed that the Claimant does not have a wider legitimate interest ending beyond the prospect of damages, as their interest is only limited to the recovery of compensation for the alleged breach of contract. No commercial interest has engaged as to the control of parking, as the Defendant had paid for a licence to park.
13. There is no commercial justification for the Claimant to found an action based on such a trivial error. The Beavis v ParkingEye [2015] Judges at the Court of Appeal stated that in that case there was a commercial justification as it was free car park and the Claimant needed to prevent overstays of the free 2 hour stay. Whereas in this case the car park is a Pay and Display car park where revenue is earned from the purchase of tickets for an agreed period of time. As no reasonable party would purchase a ticket; deliberately not show it and then write to the Claimant showing proof of a valid ticket, there is no need to prevent such an action.
[FONT="]14. [/FONT]The Protection of Freedoms Act 2012, Schedule 4 (the POFA) 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 £85, depending on the Claimant's full compliance with the POFA and establishing a breach of a 'relevant obligation' and/or 'relevant contract' from adequately prominent, large lettering terms on copious and clear signage.[FONT="]
[/FONT]
15. This claim inflates the total to an eye-watering £230.48 in a clear attempt at double recovery. The Defendant puts it to the court that this wholly unreasonable conduct is a gross abuse of process. The Claimant knows this, as do their solicitors and the Defendant ask that the Court takes notice of this repeated abuse of consumer rights and remedies.
16. In Parking Eye Ltd v Beavis [2015] UKSC 67 (where £85 was claimed, and no more) it was stated that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. It is also a fact that debt collection agencies act on a no-win-no-fee basis for parking operators, so no such costs have been incurred in truth.
17. The Defendant invites the court to consider this matter a trifle; the Defendant has acted in good faith and the Claimant has suffered no actual loss. In plain language, the Claimant has spent 18 months aggressively seeking extravagant sums for a presumed failure to display a £1 parking ticket; evidence for the purchase of which it has never contested.
18. The Defendant requests the court use its case management powers to strike the claim out as the Claimant has failed to provide basic details about its claim; is seeking an extravagant and unconscionable penalty and is using the court process, against the public interest, to intimidate and harass those acting in good faith.0 -
Hi!
I was wondering if anyone had any further comments on the defence above? I'll have to submit it soon, so any thoughts would be much appreciated!0 -
Hi Again,
I was wondering if anyone had any further comments on the defence above?
Many thanks in advance!
Kind Regards
Rob0 -
Looks OK, if a little long but it covers what it needs to say.
I would not use the word 'error', when in fact the predatory ticketer quite possibly blew through the vents or leaned on the car to dislodge the ticket from the dashboard, or the wind caught it. Who knows, but neither scenario is a:
or any 'error' or omission, by you at all.trivial error
Have a look at the results you get when you search Jolley v Carmel defence.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Good point - many thanks for your comments.
So I would propose a simple reword to :
There is no commercial justification for the Claimant to found an action based on such an issue.
Leaving out the matter of whether it is an error or otherwise. To the best of my knowledge, it was on the dash when I left it!
I'm keen to keep it slimline - which elements are superfluous and I will trim those.
Last but not least - I read the case summary on the case you suggested - many thanks for pointing it out to me.
What wasn't clear to me was whether in a parking contract in general or any contract where it is not stated, whether one would be expected to use reasonable endeavors or best endeavors to comply with the terms?
I briefly read about good faith in contracts would seem to suggest that in English Law, good faith is only something that can be relied on by the parties if it is expressly stated in the contract. Would that interpretation be right?0 -
Hi All,
I had some quick questions about the exact nature of the fluttered ticket business, and wonder if you could help.
To be clear, in the below, I advance some lines of thinking that a claimant might pursue, and some possible responses to them. I do not advance that these lines of thinking are correct, merely that they might be made.
To be devils advocate (pun intended) could the claimant ask the judge to consider that the most likely set of events to be that the ticket was blown off the dash as the door closed (without offering evidence), and that that the defendant did not stop to consider his dash before leaving his vehicle (without offering any evidence). The claimant would presumably advance that stopping to consider the dash would be a reasonable course of action and therefore, the most likely cause of the breach of contract is that the defendant did not act reasonably in the exercise of his duties under the contract.
I am not saying that the above is the most likely set of events, and I certainly do not say that I did not stop to consider the dash, but if I was a claimant, I think I would try the above.
Defences, one might think would be the lack of any evidence that this is the most likely set of events, or any evidence that the defendant didn't consider the dash, and the existence of many other plausible sets of events to explain the situation.
A claimant may not advance the above as defendants may clearly remember checking their dash, and testify as such. But how valuable a judge might find such testimony, terribly easy for an unscrupulous defendant to falsify, many months after an event that if it weren't for the presence of a PCN on return might in some peoples mind be an entirely unmemorable glance, is an open question (and a long sentence).
One might argue that the lack of adhesive backing on some ticket renders the fluttered ticket situation quite likely to occur and that the claimants are quite happy with this situation as they are using penalty clauses in the parking contract to charge high fees as a revenue raising exercise, whereas legitimately as a P&D operator their economic interest can only reside in the payment of monies for parking [Beavis]. That would seem a promising defence to such a line.0 -
I would really like to see a copy of the contract that the claimant says I entered into. Not because I doubt I entered in a contract (the purchase of a ticket makes that clear) but that I want to see the wording on the contract to defend it properly. I have a suspicion that the claimant may not actually have a copy of this contract and is not themselves clear on the terms, and is basing their claim on the terms of current contracts. How can I get them to produce a copy of the contract with a clear reference to when this was in force.0
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Last but not least, I have enclosed a copy of my defence so far. Conscious that I do not wish to risk misfortune by filing this right at the last moment, I intend to file this this weekend, to the email address given above, if I don't receive any further comments to improve before the end of the weekend. I have my PDF copy of the below signed and ready.
I've removed point one and two, as they may identify me, but in summary, they say I was the driver and give the details of the ticket I bought. The PCN was issued within the valid time on the ticket.
3. The Defendant went about his business, returned and left the car park within the period specified on his ticket.
4. The Defendant found the PCN, with a stated issue time of XX:XX, on his car later that day.
5. The Defendant noted the PCN, which stated a failure to display a valid ticket as the reason for issue. The Defendant looked for, and found, the valid ticket on the passenger seat.
6. It is assumed by the Defendant (based on the position of the ticket and by implication from the Claimants correspondence) that the ticket fell off at some point between placement on the dashboard and issue of the PCN. It remains possible that it was on the dashboard but was in some way not valid, or that it was on the dashboard and valid, but for some reason not observed.
7. The Defendant wrote to the Claimant shortly after the incident providing evidence of a valid ticket and requesting:
a. Proof that issuer of the PCN is entitled to manage parking on behalf of the land owner in that area
b. Details of the landowner
c. A copy of the parking contract which the Claimant alleges entitles them to seek additional charges.
d. Any photographs of my vehicle
The Claimant acknowledged the evidence of a valid ticket; declined to let the matter drop and did not respond to any of the requests.
8. The Claimant's sparse Particulars do not disclose necessary details for a cause of action which could give rise to a claim. As such, they do not comply with the requirements of Civil Procedure Rule 16.4
9. As both the grounds on which the Claimant believes both that the contract entitles them to the original sum of £85 and the nature of the alleged breach of contract are unclear, the Claimant is put to strict proof that the contract, if breached, would allow them to seek the sum claimed.
10. Parking Eye Ltd v Beavis [2015] UKSC 67 showed that the Claimant does not have a wider legitimate interest ending beyond the prospect of damages, as their interest is only limited to the recovery of compensation for the alleged breach of contract. No commercial interest has engaged as to the control of parking, as the Defendant had paid for a licence to park.
11. There is no commercial justification for the Claimant to found an action based on such an issue. The Beavis v ParkingEye [2015] Judges at the Court of Appeal stated that in that case there was a commercial justification as it was free car park and the Claimant needed to prevent overstays of the free 2 hour stay. Whereas in this case the car park is a Pay and Display car park where revenue is earned from the purchase of tickets for an agreed period of time. As no reasonable party would purchase a ticket and deliberately not show it, there is no need to prevent such an action.
12. The Protection of Freedoms Act 2012, Schedule 4 (the POFA) 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 £85.
13. This claim inflates the total to an £230.48 in a clear attempt at double recovery. The Defendant puts it to the court that this is wholly unreasonable conduct and that the Claimant and their solicitors either do, or should, know this.
14. The Defendant invites the court to consider this matter a trifle; the Defendant has acted in good faith; made reasonable endeavours to adhere to the terms of a pay and display contract and the Claimant has suffered no actual loss. In plain language, the Claimant has spent 18 months aggressively seeking extravagant sums for a presumed failure to display a £1 parking ticket; evidence for the purchase of which it has never contested.
15. The Defendant requests the court use its case management powers to strike the claim out as the Claimant has failed to provide basic details about its claim; is seeking an extravagant and unconscionable penalty and is automating it’s use of the court process against the public interest to intimidate and harass those acting in good faith.
I believe that the facts stated in this defence are true.0 -
I briefly read about good faith in contracts would seem to suggest that in English Law, good faith is only something that can be relied on by the parties if it is expressly stated in the contract. Would that interpretation be right?
No, with a consumer contract, the Consumer Rights Act 2015 applies and there must be good faith (that was even mentioned in the Beavis case...) in terms of fair dealing, fairness in general and transparency of terms.
By 'contract' you are talking about the signs, so Google Street View might have it and you can change the date back on GSV to see an earlier timeline view which might help.How can I get them to produce a copy of the contract with a clear reference to when this was in force.
Or Google the place and search for 'images' - maybe another forum poster has shown the signs.
Yes this will be their stance. But YOU have an advantage at any hearing as YOU are the only true 'witness' sitting there with the Judge.To be devils advocate (pun intended) could the claimant ask the judge to consider that the most likely set of events to be that the ticket was blown off the dash as the door closed (without offering evidence), and that that the defendant did not stop to consider his dash before leaving his vehicle (without offering any evidence).
The only person who was there on the day (if you defend as admitted driver) is you. Convince the Judge you are an honest witness and you are partly there.
The Claimant can speculate about what happened (but they will merely send a hired rep, a stranger to the car park and the event) but you can state that the ticket WAS displayed when you left the car, and you can say you checked and are always diligent about this and did not breach any contract at all.
Plus tear into the holes in their evidence and find the Achilles heel.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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