fluttering ticket going to court

claxtome wrote: »

This defence came together by looking at other cases on this forum.
I still need to check all references to legal documents - my next task.

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 are not clear and concise as is required by CPR 16.4 1(a). The Claimants are
known to be serial issuers of generic claims similar to this one. HM Courts Service
have identified over 1000 similar sparse claims. I believe the term for such behaviour
is roboclaims and as such is against the public interest.


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):
a) those which set out no facts indicating what the claim is about, for example ‘Money
owed £5000’,
b) those which are incoherent and make no sense,
c) those which contain a coherent set of facts but those facts, even if true, do not
disclose any legally recognisable claim against the defendant

On the basis of the above, the Defendantwe requests the court strike out the claim for want of a
cause of action.

I'd add here reference to paras 2 and 5 and the bit after para 6 here:


The Claimant failed to comply with its obligations in paragraphs 6(a) and 6(c) of the Practice Direction - Pre-Action Conduct [then add how and the fact you wrote and asked for info which they ignored]
In the alternative, the Defendant asks the court to stay the claim and order the Claimant to provide proper particulars of it (failing which the claim should be struck out), and allowing the Defendant to file an Amended Defence, pursuant to paragraphs 13 and 15 of the Practice Direction - Pre-Action Conduct


 
Statement of Defence

I am XXXXX, defendant in this matter. It is admitted that the Defendant was the
authorised registered keeper and driver of the vehicle 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.

Non-disclosure of reasonable grounds or particulars for bringing a claim
2. The Claimant has not complied with the pre-court protocol and has not disclosed reasonable grounds for bringing a claim.

3. 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. this para reads better than the para in your prelim matters section - I'd amend that so it's more like this, and then just say "as stated above, the POC are so brief as to amount to a serious breach of CPR Part 16.4."

4. The Particulars of Claim provide no information regarding why the charge arose, what the original charge was, what the alleged contract was, whether the claim is brought for breach of contract or trespass, nor anything which could be considered a fair exchange of information. The Claimant’s solicitor has not stated on the claim form that particulars of claim will follow. again, I think this is better as part of your prelim matters

5. The defendant wrote to the claimant on xx, xx and xx asking for: again, a prelim matter - move the detail up, but mention this again here, leaving in the second half of this para
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. [from this point is what I'd leave in the Defence rather than the prelim matters section:] Due to the C's failure properly to particularise its claim, The Defendant has therefore had to cover all possible defences, which has required a great deal of time and has caused significant distress and which denies him denying a fair chance to defend the claim. 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. If the Claimant later provides more detailed particulars of its claim (for instance, in its witness evidence) then the Defendant reserves the right to add further points to his Defence

6. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), 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’.’

At the very least the Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.repetitive: ask for these orders in the prelim matters, and then just mention them briefly in the actual defence part, because these aren't defences, they are prelim matters


No invitation to park on certain terms
7. 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.”

8. 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.’someone else has commented on this:
The D admits that a contract was entered into, but denies that the contract was breached or that the C has suffered any loss; alternatively if the D did breach its terms, such breach was de minimis and caused the C to suffer no loss


I'd add something about the contract being frustrated by the unfit for purpose windscreen ticket provided, with no means of affixing it or ensuring that it was displayed face up [btw did the ticket have any sort of ref number on the back of it? A recent poster had this but said their ticket had a number on the back, giving the C the clear means to work out that it was valid]


Consumer Rights Act (CRA) 2015 – Unfair Terms
9. Even if a contract had been formed it would be 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.

10. 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.

11. Always refer to the D in the third person: The D includes....I include the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' in his my defence, because the Supreme Court (and the Court of Appeal Judges) in Beavis found it appropriate to...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.” put my point about frustration/unfit for purpose and this para together
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."’

12. 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.


Locus standi
13. 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 [amend to put in third person]my requests for information, the Claimant has failed to establish itstheir legal right to bring a claim either as the landholder or the agent of the landholder. 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. 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. separate paras, or insert sub-paras, this para is way too long and makes too many different pointsThe 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.

Trespass
14. 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
15. The Claimant might argue that the Supreme Court’s landmark decision in the Beavis case is applicable.

16. 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. insert reference to judgment saying that it does not apply to a P&D car park

The agreed damages clause is a penalty
17. 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 D has shown that he did purchase a valid ticket and the C has therefore 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.

18. 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.’

19. 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.

20. 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 17, 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 Schedule 4 specifically disallows.

21. 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.

22. 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.

23. 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.


24. 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)



Please any comments/suggestions are welcome.