ES Parking Enforcment Ltd Ticket face down charge notice

Final draft?
Any advice/crtitique very much appreciated.

Introduction
1. I am XXXX, the Defendant in this matter.
2. This is my statement of truth and my defence.
3. The claim states "parking charges and indemnity costs if applicable" which gives no indication of on what basis the claim is brought, for example, whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. This information has been formally requested but not supplied by the claimant’s representative (Gladstones Solicitors). Because of this, I have had to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied me a fair chance to defend this claim in an informed way.
Therefore, as an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.


Facts supporting the defence

The Defendant admits that the car was parked at the location indicated, but denies that any sum is owed by way of a parking charge because a pay & display ticket (PDT) was purchased to cover the parking time.

1.1. No relevant contract or relevant obligation was breached. The PDT was displayed when parking.

1.2. The Defendant was surprised to to receive a Notice to Keeper and the Defendant denies liability for the entirety of the claim for the following reasons:

3. If the claim is brought for breach of contract, the driver paid and displayed a ticket so all details could be seen. The driver checked that this was in place when the car was locked and left parked.!

3.1 If the parking ticket flipped over or became dislodged, the Defendant has no knowledge of the point at which this happened or why, but all reasonable endeavours were made and complied by conduct.

3.2 The Defendant cannot be responsible for the possibility that:
a) A gust of wind may have later flipped or dislodged the flimsy paper, despite the windows & doors being locked.
b) The employee of the Claimant may have caused the ticket to flip over, perhaps accidentally when leaning across the car or pushing between vehicles. No suggestion of foul play is intended.
c) A passer-by may have leaned on the car, when squeezing between the small bays to get to their own vehicle.

3.3 None of the above scenarios are within a driver's control (the driver was by that time, absent from the location) and it is evident that someone else – or a factor outside anyone's control – was to blame. This appears to have been a case of casus fortuitus "chance occurrence, unavoidable accident", which is a doctrine that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties renders the contract frustrated.

3.4 Notwithstanding the above, the flimsiness of the ticket certainly played its part, and that is within the control of the Claimant, who must be well aware of the problem, which has become known as ''fluttering tickets''. Because they profit from drivers' misfortune caused by their own tickets' inability to withstand British weather. It is averred that this Claimant wilfully failed to address this issue (e.g. by adding sticky backing to the ticket, allowing it to be fixed in place).

3.5 The Court is invited to consider the fairness of the position in this case, giving due consideration to the flimsiness of the piece of paper provided, which appears to cause significant imbalance in the rights of a consumer, to their detriment, and the Defendant relies on Section 62 of the Consumer Rights Act.

3.6 In C8GF30W7 Link Parking v Mr H (14/11/2016 Port Talbot) in which a claim was dismissed due to a ticket that had turned upside down. The judge dismissed the claim and ruled that it was the responsibility of the parking company to provide sticky backed tickets and that he had already thrown out 6 -10 of these type of case.

The term, ‘A valid ticket must be purchased to park on this site and be displayed clearly in your front windscreen’ in particular the meaning of ‘displayed clearly’ 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 any uncertainty must be resolved in favour of the consumer.

3.7 A valid ticket was displayed in the front windscreen of the Defendant’s vehicle. If the Claimant wanted to impose a different term to require the ticket to be displayed in a prescribed manner (e.g. face up), then the terms should have stated this clearly and unequivocally.!

3.8 The Claimant does not dispute that the driver purchased a ticket nor that it gave them a licence to park for the entire day.

3.9 There are other similar examples which could be produced.

4. Once the Notice to Keeper was received; the Defendant endeavoured to appeal the postal Parking Charge Notice online via the Claimant's website with a copy of the ticket displayed on the day, however the website rejected the appeal due to the size of the photograph, even though the Defendant resized the photograph more than once.
When then Defendant tried again on 2 October 2017 the claimant's website would not allow the appeal to be submitted and stated that the notice was more than 21 days old and therefore no longer subject to appeal. This was incorrect and in contravention of the Claimant's Accredited Operator Code of Practice which states in Part B, Section 6 that Operators should 'Allow a minimum of 21 days from imposition for the motorist to lodge an appeal with you and make representations' . International Parking Community Code of Practice - see Schedule 4.

4.1. The Claimant sent a Letter Before Claim to the Defendant on 9 November 2017. In a response on 3 December 2017, the Defendant provided a copy of the ticket displayed on the day providing the Claimant with clear evidence that the driver had acted in good faith and made all reasonable endeavours to comply with the terms and condition (“T&C”) - as far as they were understood.

4.2 Provision of a copy of the ticket displayed on the day in the Defendant's response gave the Claimant a clear opportunity to act reasonably and cancel the charge. The Claimant failed to respond or acknowledge the Defendant's reply to the Letter Before Claim.

4.3 The above constitutes a direct breach of Practice Direction - Pre-Action Conduct and Protocols; specifically - paragraph 3 (Objectives), 6(a) and (c) (Steps before issuing a claim) and 8 (Settlement and ADR). As such the court's attention is drawn to the sanctions set out in paragraphs 13 – 16.

4.4 The Claimant’s conduct is also a direct breach of the International Parking Community ("IPC") Code of Practice ("CoP"), Part B, Section 6. The CoP is effectively regulation for the private parking industry, as found by the Supreme Court in the Beavis Case.

Unfairness - no regard for the Trader's duty for 'Fair Dealing' and Misleading Trading Practices
5. Trade Body Codes of Practice are 'effectively binding' according to the Supreme Court in the!Beavis!case.!

5.1. Further, the Consumer Protection from Unfair Trading Regulations identifies at section 5 'Misleading Actions': (3) A commercial practice satisfies the conditions of this paragraph if - (b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—
(i) the trader indicates in a commercial practice that he is bound by that code of conduct, and
(ii) the commitment is firm and capable of being verified and is not aspirational.

5.2. The Court's attention is drawn to the “Red Hand Rule”, as set out in the leading judgment in!J Spurling v Bradshaw![1956] EWCA Civ 3, where Denning MR stated:!“The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient”.!

5.3. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that must be used to form contracts. It says:!''It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge.''!

5.4. In the Beavis case, the Supreme Court Judges reiterated the requirement for fair and open dealing, at paragraph 205:!“The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

5.5. Courts must now consider the fairness of a term, where it is not 'prominent and transparent'. Unfair terms here include the penalty fine itself, charges hidden in small print, lack of any fair grace period for the driver to seek out, read decide whether to accept any advertised parking contract, misleading and predatory conduct, added costs not specified prominently in the alleged contract, disproportionate default charges, non-observance of a Code of Practice. Such conduct and terms breach Part 2 'Unfair Contract Terms' of the Consumer Rights Act 2015 (the CRA) which was enacted after the!Beavis!case final hearing, and remains untested in the context of unfair parking penalty charges.!

5.5.1. The Court's attention is drawn to the CRA at SCHEDULE 2, a non-exhaustive list of!'Consumer contract terms which may be regarded as unfair'!which include clear references to conduct that is on all fours with that of this Claimant, and their solicitors.

5.5.2. The CRA requires that key terms of a contract,!including price, must be assessed for fairness by a court, where those terms are not both 'prominent and transparent' (which the Defendant avers they are not).!
The CRA, at para 71, sets out the duty of court to consider fairness of a consumer contract term:!''(2) The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it''.!



Limited Contract
6. The signage on this site is inadequate to form a contract to pay £100 or any sum at all. It is barely legible, making it difficult to read and it is not believed that such terms were proclaimed with the tariffs at the machine. Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which the Claimant is a member), clearly obliges the Claimant to display legible signs in appropriate locations.

Locus Standi

7. The Claimant has failed to establish its legal right to bring a claim either as the landholder or the agent of the landholder and therefore would have no locus standi to bring this case per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd.

7.1 Parking Eye Ltd v Beavis [2015] UKSC 67 showed that the Claimant does not have a wider legitimate interest extending beyond the prospect of damages, as their interest is only limited to the recovery of compensation for the alleged breach of contract, and no commercial interest has engaged as to the control of parking as the driver had paid for a licence to park.

8. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the Defendant liable under the strict “keeper liability” provisions.

8.1. Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a “relevant obligation” and “relevant contract”, fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper.


This Claim is artificially inflated, but is embarrassing for scarce Particulars
9. It is denied that the Claimant has any entitlement to the sums sought, and it is noted that this Claim has inflated the 'charges' in a typically routine attempt at double recovery of a sum which bears no relation to the sum on any sign or parking charge notice.!

10. No indemnity costs or damages have been incurred, nor were any debt collection 'fees' paid by this Claimant, and it is averred that the sum claimed is invented out of thin air as part of the Claimant's solicitors' robo-claim model.!

11 The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence and no scrutiny of details. HMCS have identified thousands of similar poorly produced claims, and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.!

12. The Particulars of Claim lack specificity and are embarrassing. The Court is respectfully invited to strike out the claim, for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a parking claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and!''providing no facts that could give rise to any apparent claim in law''.!

13. Should the Claim not be struck out by the Court, as an alternative when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange). This is because it is expected that the Claimant/Gladstones will use the witness statement to finally provide the sort of detail which should have been disclosed much earlier in the missing Particulars of Claim. The Defendant should have the opportunity to consider the full particulars/evidence, prior to serving evidence and witness statements in support of this Defence.

I believe that the facts contained in this Defence are true.


Signature


Date
Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.