fluttering ticket going to court

Coupon-mad · 24 September 2017 at 1:03AM

I'll backtrack about the advice to defend this as keeper only, because sadly I've just seen that in your second reply to the LBCCC (despite being far more careful in your first reply) you pretty much blew your toes off about who was driving and who entered into the contract:

''I purchased a valid ticket for the whole day in question and displayed this in view of the front windscreen. Due to the flimsiness of the ticket and the lack of sticky back sometime during that day the ticket became overturned. A copy of the valid ticket is attached to this letter.''

claxtome · 24 September 2017 at 5:02AM

Coupon-mad - thought I had shot myself in the foot.

Not a problem still have plenty of defensive arguments.
I have decided to remove the post showing draft V2 as had no specific comments so far.
Here is the new version of draft V2.->

In the County Court
Claim Number:
Between
xxxx (Claimant)
and
xxxx (Defendant)

Defence Statement

Preliminary Matters.

1. The Claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says:
1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.

2. 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. Indeed the particulars of claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence; are not clear and concise as is required by CPR Part 16.4 1(a). The Claimant's solicitor is known to be a serial issuer of particulars of claim which arise from an automated template, with no due diligence, and is believed to be the subject of an active investigation by the Solicitors Regulation Authority. The Defendant argues that the Claimant's conduct in pursing consumers through the small claims track, using an automated system is against the public interest and not something the courts should be seen to support.

Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

1.4 The following are examples of cases where the court may conclude that particulars of
claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
(1) those which set out no facts indicating what the claim is about, for example ‘Money
owed £5000’,
(2) those which are incoherent and make no sense,
(3) those which contain a coherent set of facts but those facts, even if true, do not
disclose any legally recognisable claim against the defendant

In C3GF84Y2 (Mason, Plymouth County Court) [2016] the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where a claim was struck out without a hearing, due to Gladstones' template particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were efficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.
The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’

3. The defendant wrote to the claimant on xx, xx and xx asking for:
a) Full particulars of the parking charges
b) If the intended action is founded on a contractual charge, a breach of contract or trespass
c) If the charges were based on damages for breach of contract and if so to provide
justification of this sum
d) If the charge was based on a contractually agreed sum for the provision of parking
and If so to provide a valid VAT invoice for this 'service'.
e) Who the party was that contracted with ES Parking.
f) To provide a copy of the signs that ES Parking can evidence were on site and which
contended formed a contract with the driver on that occasion, as well as all
photographs taken of the vehicle in question.
The claimant and their solicitors have declined to respond to the requests with a compliant response.

4. The Claimant has not complied with the pre-court protocol and has not disclosed reasonable grounds for bringing a claim.

On the basis of the above, the Defendant requests the court strike out the claim for want of a cause of action. At the very least the Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

Statement of Defence

I am XXXXX, defendant in this matter. It is admitted that the Defendant was the
authorised registered keeper and the driver in question at the time of the alleged incident.

The Defendant denies liability for the entirety of the claim for the following reasons:

1. A ticket was paid for and displayed so all details could be seen, until it was dislodged by a gust of wind, although the Defendant has no knowledge of the point at which the ticket flipped over or why. The ticket gave the Defendant a licence to park for the entire day, from 09:MMam on XX/XX/17, covering the time and date relating to the disputed charge. The ticket was displayed which will be demonstrated by the Claimant’s own evidence.

2. The Defendant appealed the postal PCN, effectively the NTK, on the XX/XX/XXXX explaining what had happened and included a copy of the ticket displayed on the day. This gave the opportunity for the PPC to dismiss the claim. A response from the PPC was never received.

Non-disclosure of reasonable grounds and Particulars of Claim not precise
3. The Claimant has not complied with the pre-court protocol and has not disclosed reasonable grounds for bringing a claim.

4. The Particulars of Claim are so brief as to amount to a serious breach of CPR 16.4. Due to the Claimant’s failure properly to particularise its claim, the Defendant has had to cover all possible defences, which has required a great deal of time and has caused significant distress and denies him a fair chance to defend the claim.

No invitation to park on certain terms and unfit tickets
5. The signage on this site is inadequate to form a contract. It is barely legible, making it difficult to read. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which ES is a member), clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.”

6. A contract was never formed. There was never a contractual relationship, whether categorised as a licence or some form of contractual permission, because the signage does not offer an invitation to park on certain terms. The terms are forbidding, per C5GF17X2, Guildford County Court, heard by Judge McCulloch, citing Arrale v Costain Civil Engineering Ltd [1976] 1 Lloyd’s Rep 98:
‘…in this case there is no evidence of a true accord at all. No one explained to [the plaintiff] that he might have a claim at common law. No one gave a thought to it. So there cannot be an agreement to release it. There being no true accord, he is not barred from pursuing his claim at common law.’

7. The Defendant admits that a contract was entered into, but denies that the contract was breached or that the Claimant has suffered any loss; alternatively if the Defendant did breach its terms, such breach was de minimis and caused the Claimant no loss.

8. The contract was frustrated by the unfit for purpose windscreen tickets provided by the Claimant, with no sticky back to allow the means to affix to the windscreen and the flimsy paper used which is easily blown in a gust of wind. The car park in question has no signs or terms required the use of adhesives to affix the ticket to the window, the term to display a ticket ‘in the front windscreen’ does not require the use of adhesive to affix the ticket.

9. The Defendant includes the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' in his defence, because the Supreme Court (and the Court of Appeal Judges) in Beavis were happy to draw similarities with Council PCNs:
http://www.manchester.gov.uk/egov_download...Report_2006.pdf

‘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.”
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."’

Consumer Rights Act (CRA) 2015 – Unfair Terms
10. The contract formed is void, or in the alternative the following terms are either not transparent or are unfair, and these terms are not binding on the consumer, for the following reasons. Section 71 of the Consumer Rights Act 2015 provides that the Court has a duty to consider the fairness of the terms.

11. 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 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.

Locus standi
12. The Claimant has no standing to bring this claim, or in the alternative the doctrine of privity applies and the Claimant is not privy to a contract that is between the landowner and the defendant. The proper Claimant is the landowner. In not responding to the Defendants requests for information, the Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder.

13. The Defendant has reasonable belief that a statutory assignment has not taken place, therefore per Viscount Haldane’s judgement in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, the Claimant may only sue on the contract as an agent if consideration has been given by the landowner personally or through the Claimant acting as agent; no such consideration flows as the Claimant does not receive payment from the landowner to manage the site in the landowner’s commercial interest, does not receive any proceeds from the sale of tickets, and does not offer parking as consideration for the Defendant’s payment for a licence to park. The Claimant’s business model is solely driven by the recovery of penalty fees.

14. Strict proof is required that there is an assignment of contractual rights leading from the landowner to ES Parking Enforcement Ltd. The Defendant has reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they 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.

15. The Defendant also has reasonable belief that the tests of enforceability for the Contracts (Rights of Third Parties) Act 1999 have not been met. The Claimant has failed to establish an express conferral pursuant to section 1(1)(a) and section 1(3), which requires precise terms which identify the Claimant, and which expressly state that the Claimant has the ‘right to enforce the contract’ or the ‘right to sue’, or even to demonstrate an implied conferral per section(1)(1)(b) and section 1(3), which requires a term to expressly confer a benefit on the Claimant and for the Claimant to be specifically named, noting that it is not a benefit if the Claimant’s position is merely improved if the contract is performed (A Burrows, ‘The Contracts (Right of Third Parties) Act 1999 and its implications for commercial contracts’ [2000] LMCLQ 540, 542-546). Furthermore as per Trendtex Trading Corporation v Credit Suisse [1982] AC 679, a mere right to sue for damages is not assignable unless the assignee has a genuine commercial interest in taking the assignment; and Lords Neuberger and Sumption’s judgement (at [28]), in Parking Eye Ltd v Beavis [2015] UKSC 67, shows 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 Defendant had paid for a licence to park.

claxtome · 24 September 2017 at 5:06AM

Trespass
16. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. In the event that a trespass claim is brought by the Claimant, the Defendant parked on land where parking was invited and paid for full authority to park, and did not overstay. Trespass cannot therefore apply. Furthermore, the Defendant has reasonable belief that the Claimant does not have a contractual or proprietary right to occupy or possess the car park per Hill v Tupper [1863] 2 H & C 121; the landowner has not assigned rights to enable the Claimant to pursue a case under the tort of trespass. In any event, the Defendant’s sole liability would be damages in favour of the landowner. Per the Supreme Court in the case of Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case), trespass is limited to the landowner themselves claiming for a nominal sum.

Applicability of ParkingEye Ltd v Beavis [2015] UKSC 67
17. The Claimant might argue that the Supreme Court’s landmark decision in the Beavis case is applicable.

18. This case is not supported by any similarity in the circumstances or signage. Mr Beavis refused to pay a charge of £85 for overstaying a permitted period of free parking in a car park at a retail park. The signs displaying this information were accepted to be large, prominent and legible. The notice stated ‘2 hour max stay… Failure to comply … will result in a Parking Charge of £85.’ Mr Beavis exceeded the time limit by one hour but declined to pay the charge and maintained the term which sought to impose the charge was an unfair term. The Beavis case does not assist the claimant and in fact, supports my defence.

19. The Beavis v ParkingEye[2015] appeal judgement stated that the Beavis case is not applicable to a pay and display car park where the contract concerned a financial nature unlike Beavis who parked in a free car park and overstayed:
“All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract by one party or the other. Sometimes such measurement is difficult because of inherent uncertainties, and in those an agreed liquidated damages provision may be upheld for those reasons. But, however difficult it may be to measure, it is clear that there are economic and commercial effects on the parties.
The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours; there is no more than (for that time) a gratuitous licence to use the land. The operator affords the driver a free facility. That facility is, of course, of economic value to the driver, as well as of convenience, in assisting the driver to visit the shops in the shopping centre which the car park serves. It is thus useful to the driver, being close to the shops, and free. It is also useful to the shopkeepers, in encouraging visitors, and in particular in encouraging a turnover of visitors because of the two hour limit. A car owner cannot simply come to the car park and park there all day. To do that would be to clog up the facility and to prevent those arriving later from using the park for its intended purpose.“

20. In the case of ParkingEye Vs Cargius [2014] it was held that the Beavis case did not apply since parking was paid for rather than free for a limited period. The judge distinguishes it by reasoning that in Beavis the charge was justifiable as it was their only income, whereas in a paid car park, only the hourly charge is being lost by overstaying (e.g. £2); anything above that is clearly a penalty.

21. There is no possible commercial justification for such a trivial error for the PPC. The Beavis v ParkingEye [2015] appeal stated there was a commercial justification:
"In the course of argument a good deal of reliance was placed on ParkingEye's contract with the Pension Fund, under which it received no revenue from its operation of the car park if motorists adhered to the terms of the licence. Thus, both the appellant and the Consumers' Association submitted that ParkingEye's need to obtain revenue to fund the operation of the car park could not provide a commercial justification for what would otherwise be unenforceable as a penalty. They also submitted that the fact that ParkingEye suffered no direct loss as a result of motorists' overstaying the free period was entirely a consequence of its own choice of "business model", that is, its decision to structure its business in a way that gave it no interest in the land but obliged it to obtain its revenue entirely from charges levied on overstayers. This combination of factors does, of course, enable the respondent to argue that the charge is a penalty, but for the reasons I have given I think that fails to deal with the true nature of the problem. In my view the terms on which ParkingEye chose to contract with the Pension Fund are irrelevant. If ParkingEye had had an interest in the retail park itself, it might have been possible for it to put forward a more robust commercial justification for imposing the parking charge by reference to a financial interest of an indirect nature in ensuring a constant turnover of customers' cars. However, the effect on motorists would have been exactly the same."

The agreed damages clause is a penalty
22. The signage provides for a parking charge of £100 if the terms and conditions of parking are breached. The Claimant seeks £160 which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown he did purchase a valid ticket and the Claimant has suffered no loss, and because any breach of contract (which, for the avoidance of doubt, is denied) was de minimis. No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs.
Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.

24. In ParkingEye Ltd v Beavis the Supreme Court recast the test to be applied when seeking to distinguish a liquidated damages clause from a penalty clause. To engage a penalty the question was whether the relevant provision was “unconscionable” or “extravagant” (Lord Hodge at [221]). The full test was expounded by Lord Hodge (at [255]):
‘I therefore conclude that the correct test for a penalty is whether the sum or remedy stipulated as a consequence of a breach of contract is exorbitant or unconscionable when regard is had to the innocent party’s interest in the performance of the contract. Where the test is to be applied to a clause fixing the level of damages to be paid on breach, an extravagant disproportion between the stipulated sum and the highest level of damages that could possibly arise from the breach would amount to a penalty and thus be unenforceable. In other circumstances the contractual provision that applies on breach is measured against the interest of the innocent party which is protected by the contract and the court asks whether the remedy is exorbitant or unconscionable.’

24. The Supreme Court was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield). The charge to the Defendant of £160 is evidently extravagant and unconscionable in that it is disproportionate to the Claimant’s interest, and disproportionate to the highest level of damages that could possibly arise from the Defendant’s alleged breach of contract.

25. The Defendant therefore disputes the amount claimed, as it comprises excessive and non-contractual elements, and additional costs must be proved. With reference to paragraph 22, the Claimant claims a sum of £160 as a ‘parking charge’ (for which liability is denied), which includes £60 that the claimant has untruthfully presented as contractual charges, which amounts to double charging, which the PoFA 2012 Schedule 4 specifically disallows.

26. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

27. The Claimant has claimed a £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. The Defendant also has a good faith belief that due to the sparse particulars the £50 claimed for filing the claim has not been incurred. This appears to be an attempt at double recovery as a way to inflate the value of the claim. The solicitor has been incompetent and is not due £50. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.

28. 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”. These were presumably the £25 filing fee and £25 hearing fee.
9. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

29. The Defendant invites the court to strike out the claim for the above grounds.

I believe the facts stated in this defence are true.

(Name) (Signature) (Date)

As always any comments/suggestions are welcome please

claxtome · 24 September 2017 at 7:10AM

Have started going through and checking referenced Practice Directions, IPC guidelines and referenced court cases.

1) I don't think Practice Direction 16 7.3(1):

Other matters to be included in particulars of claim
7.3 Where a claim is based upon a written agreement:
(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

about attaching a contract applies for a court case raised at the Northampton Count Court Centre as Practice 7C 1.4(3A) states:

3A) The requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims to be issued by the Centre, unless the particulars of claim are served separately in accordance with paragraph 5.2 of this practice direction.

Is my understanding correct or am I reading it wrong?

2) Also I am not sure paragraph 15 is correct:

15. The Defendant also has reasonable belief that the tests of enforceability for the Contracts (Rights of Third Parties) Act 1999 have not been met. The Claimant has failed to establish an express conferral pursuant to section 1(1)(a) and section 1(3), which requires precise terms which identify the Claimant, and which expressly state that the Claimant has the ‘right to enforce the contract’ or the ‘right to sue’, or even to demonstrate an implied conferral per section(1)(1)(b) and section 1(3), which requires a term to expressly confer a benefit on the Claimant and for the Claimant to be specifically named, noting that it is not a benefit if the Claimant’s position is merely improved if the contract is performed (A Burrows, ‘The Contracts (Right of Third Parties) Act 1999 and its implications for commercial contracts’ [2000] LMCLQ 540, 542-546). Furthermore as per Trendtex Trading Corporation v Credit Suisse [1982] AC 679, a mere right to sue for damages is not assignable unless the assignee has a genuine commercial interest in taking the assignment; and Lords Neuberger and Sumption’s judgement (at [28]), in Parking Eye Ltd v Beavis [2015] UKSC 67, shows 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 Defendant had paid for a licence to park.

(cant understand it) when looking at 'Contracts (Rights of Third Parties) Act 1999 Section 1:

1 Right of third party to enforce contractual term.

(1)Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if—
(a)the contract expressly provides that he may, or
(b)subject to subsection (2), the term purports to confer a benefit on him.
(2)Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party.
(3)The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.
(4)This section does not confer a right on a third party to enforce a term of a contract otherwise than subject to and in accordance with any other relevant terms of the contract.
(5)For the purpose of exercising his right to enforce a term of the contract, there shall be available to the third party any remedy that would have been available to him in an action for breach of contract if he had been a party to the contract (and the rules relating to damages, injunctions, specific performance and other relief shall apply accordingly).
(6)Where a term of a contract excludes or limits liability in relation to any matter references in this Act to the third party enforcing the term shall be construed as references to his availing himself of the exclusion or limitation.
(7)In this Act, in relation to a term of a contract which is enforceable by a third party—
“the promisor” means the party to the contract against whom the term is enforceable by the third party, and
“the promisee” means the party to the contract by whom the term is enforceable against the promisor.

Can someone please provide me a suggested reword, if necessary. Thank you

3) Finally is the following true as can't find this in Practice Direction Part 16?

27. The Claimant has claimed a £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.

Coupon-mad · 24 September 2017 at 12:15PM

Remove this before #3:

The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’

...because you already have that in 1.4(1)

And your numbers should not repeat at all, so your Statement of Defence below should be #5, and so on:

5. I am XXXXX, defendant in this matter. It is admitted that the Defendant was the
authorised registered keeper and the driver in question at the time of the alleged incident.

The Defendant denies liability for the entirety of the claim for the following reasons:

This will then be #6, which I think should be divided and reworded:

6. A ticket was paid for and displayed so all details could be seen, and was in place the right way up when the car was locked and left parked. [STRIKE]until it was dislodged by a gust of wind, although[/STRIKE] The Defendant has no knowledge of the point at which the ticket flipped over or why, but made reasonable endeavours, and complied by conduct.

6.1 The Defendant cannot be responsible for the possibility that:

- a gust of wind may have later flipped the flimsy paper over, despite the windows & doors being locked.
- 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 but this is a known predatory tactic among this industry.
- a passer-by may have leaned on the car, when squeezing between the small bays to get to their own vehicle.

6.2 None of the above scenarios are within a driver's control (I 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.

6.3 Notwithstanding the above, the flimsiness of the ticket certainly played its part, and that is within the control of this industry, who are well aware of the problem - which even has a name attributed: ''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 decided not to address this issue (e.g. by adding sticky backing to the ticket).

6.4 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.

''A term or notice is deemed to be ‘unfair’ if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer. This is to be determined by taking into account the nature of the subject matter of the contract, and by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends [...] ''An unfair term of a consumer contract is not binding on the consumer.''(s.62 Consumer Rights Act).

6.5 It is not disputed that the ticket gave the Defendant a licence to park for the entire day, from 09:MMam on XX/XX/17, covering the time and date relating to the disputed charge. The ticket was purchased and was on the dashboard at all times, which will be demonstrated by the Claimant’s own evidence.

Never use the forum acronym 'PPC' which means NOTHING to anyone outside this bubble! Change it throughout, to 'the operator' or 'the Claimant':

This gave the opportunity for the PPC to dismiss the claim. A response from the PPC was never received.

Either remove this (repetition) or put it up with your preliminary matters:

Non-disclosure of reasonable grounds and Particulars of Claim not precise
3. The Claimant has not complied with the pre-court protocol and has not disclosed reasonable grounds for bringing a claim.

4. The Particulars of Claim are so brief as to amount to a serious breach of CPR 16.4. Due to the Claimant’s failure properly to particularise its claim, the Defendant has had to cover all possible defences, which has required a great deal of time and has caused significant distress and denies him a fair chance to defend the claim.

You cannot say there was no contract because there WAS, when you purchased the ticket, so this needs work, or simply remove it as it adds nothing relevant IMHO:

6. A contract was never formed. There was never a contractual relationship, whether categorised as a licence or some form of contractual permission, because the signage does not offer an invitation to park on certain terms. The terms are forbidding, per C5GF17X2, Guildford County Court, heard by Judge McCulloch, citing Arrale v Costain Civil Engineering Ltd [1976] 1 Lloyd’s Rep 98:
‘…in this case there is no evidence of a true accord at all. No one explained to [the plaintiff] that he might have a claim at common law. No one gave a thought to it. So there cannot be an agreement to release it. There being no true accord, he is not barred from pursuing his claim at common law.’

Only admit a contract to display (which you did) and pay a small tariff (which you did):

7. The Defendant admits that a contract was entered into, but denies that the contract was breached or that the Claimant has suffered any loss; alternatively if the Defendant did breach its terms, such breach was de minimis and caused the Claimant no loss.

...what you can say here is that: whilst there was a limited contract which was concluded at the pay and display machine, the only sums of money in large lettering at that 'point of sale' were the parking tariffs, and the Claimant is put to strict proof of the notices on/at the PDT machine.

This bit needs to make it clear the quote is from the Judges at Court of Appeal stage, but later, the Supreme Court Judges did not disagree on the points made (your version sounds like you are quoting from the Supreme Court decision/judgment):

19. The Beavis v ParkingEye[2015] appeal judgement

Be careful here - I don't like 'agreed' and I don't like the statement that signage provides for payment of £100, because part of your defence is that, at the PDT machine, the tariffs are the only sums agreed:

The agreed damages clause is a penalty
22. The signage provides for a parking charge of £100 if the terms and conditions of parking are breached.

And re this:

I am not sure paragraph 15 is correct:

I think the second part from Trendtex onwards is good, but I wouldn't talk about 'rights of third parties' from a 1999 Act, becasue the claimant is not a third party - they offered the contract by way of signage. They are a party to the purported contract, not a third party.

Lamilad · 24 September 2017 at 3:22PM

That may be one of the longest defences I have ever read. I was hoping for an intermission and someone selling ice creams halfway through.

You have gone into far too much detail. For example, you have several paragraphs talking about deficient PoC and CPR/PD failures which basically say the same things, in different words.

You've used 7 long paragraphs to explain that your case can be distinguished from Beavis.

Go back and read post #2 of the newbies thread about what information a defence should contain and how it should look. There are plenty of linked examples - the Johnersh one is very good... and succinct.

Further to what CM has already said:

The Defendant appealed the postal PCN........ This gave the opportunity for the PPC to dismiss the claim.

When you appealed there was no "claim" to "dismiss". You should say 'cancel the charge'

the signage does not offer an invitation to park on certain terms. The terms are forbidding,

This is irrelevant to a P&D car park. As CM suggests you should remove this whole para.

9. The Defendant includes the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' in his defence, because the Supreme Court (and the Court of Appeal Judges) in Beavis were happy to draw similarities with Council PCNs:
http://www.manchester.gov.uk/egov_download...Report_2006.pdf

You do not submit evidence with your defence. This comes later.

The Defendant also has a good faith belief

Why say "good faith" belief? You don't need to further 'pad out' your sentences with unnecessary embellishments.

The solicitor has been incompetent and is not due £50.

Irrelevant

claxtome · 24 September 2017 at 7:25PM

Thanks so much for your help Coupon-mad and Lamilad and persevering with my war and peace defence. I am obviously not reading the right threads but will get there with your help.
I will work on V3 tonight and post it later.

My defence.....
It is not easy to know which parts of a defence you read to include and which ones not when you are not legally knowledgeable about parking law. But anyone who knows me would say I am a good listener.

Anyway I am happy about the advice I am being given on this forum and know with all your help and patience I will get to my best defence statement.

claxtome · 25 September 2017 at 8:53AM

I am hoping the defence below is more succinct, even though still long, and I have listened to what people have said. The Preliminary matters has been rejigged and the Beavis paragraphs have been removed as think they are better in the witness statement.

Defence Statement

Preliminary Matters
1. The Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

1.1 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 does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence; are not clear and concise as is required by CPR Part 16.4 1(a).

1.2 The Claimant's solicitor is known to be a serial issuer of particulars of claim which arise from an automated template, with no due diligence, and is believed to be the subject of an active investigation by the Solicitors Regulation Authority.

1.3 In C3GF84Y2 (Mason, Plymouth County Court) [2016] the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where a claim was struck out without a hearing, due to Gladstones' template particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

1.4 On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were efficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

1.5 The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

1.6 Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
a) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
b) A copy of any contract it is alleged was in place (e.g. copies of signage)
c) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
d) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
e) If Interest charges are being claimed, the basis on which this is being claimed

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

1.7 The defendant wrote to the claimant on xx, xx and xx asking for:
a) Full particulars of the parking charges
b) If the intended action is founded on a contractual charge, a breach of contract or trespass
c) If the charges were based on damages for breach of contract and if so to provide
justification of this sum
d) If the charge was based on a contractually agreed sum for the provision of parking
and If so to provide a valid VAT invoice for this 'service'.
e) Who the party was that contracted with ES Parking.
f) To provide a copy of the signs that ES Parking can evidence were on site and which
contended formed a contract with the driver on that occasion, as well as all
photographs taken of the vehicle in question.
The claimant and their solicitors have declined to respond to the requests with a compliant response.

Background
2. It is admitted that the Defendant was the authorised registered keeper and the driver in question at the time of the alleged incident.

The Defendant denies liability for the entirety of the claim for the following reasons:

3. A ticket was paid for and displayed so all details could be seen, and was in place the right way up when the car was locked and left parked. The Defendant has no knowledge of the point at which the ticket flipped over or why, but made reasonable endeavours, and complied by conduct.

3.1 The Defendant cannot be responsible for the possibility that:
(a) A gust of wind may have later flipped the flimsy paper over, 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 but this is a known predatory tactic among this industry.
(c) A passer-by may have leaned on the car, when squeezing between the small bays to get to their own vehicle.

3.2 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.

3.3 Notwithstanding the above, the flimsiness of the ticket certainly played its part, and that is within the control of this industry, who are well aware of the problem - which even has a name attributed: ''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 decided not to address this issue (e.g. by adding sticky backing to the ticket).

3.4 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.
''A term or notice is deemed to be ‘unfair’ if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer. This is to be determined by taking into account the nature of the subject matter of the contract, and by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends [...] ''An unfair term of a consumer contract is not binding on the consumer.''(s.62 Consumer Rights Act).

3.5 It is not disputed that the ticket gave the Defendant a licence to park for the entire day, from 09:MMam on XX/XX/17, covering the time and date relating to the disputed charge. The ticket was purchased and was on the dashboard at all times, which will be demonstrated by the Claimant’s own evidence.

4. The Defendant appealed the postal Parking Charge Notice on the XX/XX/XXXX explaining what had happened and included a copy of the ticket displayed on the day. This gave the opportunity for the Claimant to cancel the charge. A response from the Claimant was never received.

Limited contract
6. The signage on this site is inadequate to form a contract. It is barely legible, making it difficult to read. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which ES is a member), clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.”

6.1 Whilst there was a limited contract which was concluded at the pay and display machine, the only sums of money in large lettering at the ‘point of sale’ were the parking tariffs, and the Claimant is put to strict proof of the notices on/at the pay and display machine.

Consumer Rights Act (CRA) 2015 – Unfair Terms
7. The contract formed is void, or in the alternative the following terms are either not transparent or are unfair, and these terms are not binding on the consumer, for the following reasons. Section 71 of the Consumer Rights Act 2015 provides that the Court has a duty to consider the fairness of the terms.

7.1 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 the consumer must be given the benefit of the doubt.

7.2 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.

7.3 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.

Locus standi
8. The Claimant has no standing to bring this claim, or in the alternative the doctrine of privity applies and the Claimant is not privy to a contract that is between the landowner and the defendant. The proper Claimant is the landowner. In not responding to the Defendants requests for information, the Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder.

8.1 The Defendant has reasonable belief that a statutory assignment has not taken place, therefore per Viscount Haldane’s judgement in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, the Claimant may only sue on the contract as an agent if consideration has been given by the landowner personally or through the Claimant acting as agent; no such consideration flows as the Claimant does not receive payment from the landowner to manage the site in the landowner’s commercial interest, does not receive any proceeds from the sale of tickets, and does not offer parking as consideration for the Defendant’s payment for a licence to park. The Claimant’s business model is solely driven by the recovery of penalty fees.

8.2 Strict proof is required that there is an assignment of contractual rights leading from the landowner to the Claimant. The Defendant has reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they 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.

8.3 As per Trendtex Trading Corporation v Credit Suisse [1982] AC 679, a mere right to sue for damages is not assignable unless the assignee has a genuine commercial interest in taking the assignment; and Lords Neuberger and Sumption’s judgement (at [28]), in Parking Eye Ltd v Beavis [2015] UKSC 67, shows 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 Defendant had paid for a licence to park.

Trespass
9. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. In the event that a trespass claim is brought by the Claimant, the Defendant parked on land where parking was invited and paid for full authority to park, and did not overstay. Trespass cannot therefore apply. Furthermore, the Defendant has reasonable belief that the Claimant does not have a contractual or proprietary right to occupy or possess the car park per Hill v Tupper [1863] 2 H & C 121; the landowner has not assigned rights to enable the Claimant to pursue a case under the tort of trespass. In any event, the Defendant’s sole liability would be damages in favour of the landowner. Per the Supreme Court in the case of Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case), trespass is limited to the landowner themselves claiming for a nominal sum.

Claimant is seeking a penalty and extra costs
10. The Claimant seeks £160 which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown he did purchase a valid ticket and the Claimant has suffered no loss, and because any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.

10.1 £60 of the £160 ‘parking charge’ (for which liability is denied) the Claimant has untruthfully presented as contractual charges, which amounts to double charging, which the PoFA 2012 Schedule 4 specifically disallows.

10.2 The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

10.3 The Claimant has claimed a £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.

10.4 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”. These were presumably the £25 filing fee and £25 hearing fee. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

10.5 I deny the Claimant is entitled to any interest whatsoever

11. The Defendant invites the court to strike out the claim for the above grounds.

I believe the facts stated in this defence are true.

Castle · 25 September 2017 at 9:55AM

Is there a point "5" because it goes from 4 to 6?

claxtome · 25 September 2017 at 10:06AM

Good spot Castle.
Nothing is missing just a numbering problem on my part ;-)

fluttering ticket going to court

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