OK whats my next move?

Ok - I'm doing the defecnce. ONE QUESTION,


Given the TOTAL inconsistent and Contradictory signage - does this
- invalidate any possible contract on the grounds that the defendant does not know what they agreeing to - or does it just 'partially' invalidate.


What conclusion re the implied/alleged contract can be drawn from the inconsistency



7. Signage in the car park is inconsistent/contradictory.

• On close inspection the sign at the car park entrance refers the driver to the full terms and conditions printed on the sign next to the Pay and Display machine. (FIG xx). It is therefore reasonable to believe this sign overrules any others in the car park.
• The sign by the Pay and Display Machine refers to the requirement to buy a ticket “at the time of parking” (FIG1). Waiting for a parking space to become free is not considered as parking as per 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014).
• The sign by Pay and Display Machine does not refer to any grace period. (FIG xx)
• The list of infringements listed for which a “Parking Charge Notice will be issued for-” does NOT include any reference to a grace period. (FIG xx)
• Signs that do include the mention of a grace period (FIG xx) are not visible from a car that is either waiting for a space nor are they visible from a parked car.

As the signage is contradictory the defendant...…………………..what?

Many Thanks Coupon Mad

I notice from reading further that the full evidence documentation doesn't need to be produced now. In my above I've started incorporating this (FIG xx for photos), I've also started making references to documents and References (DOC_xx_REF_xx). So I assume I need to remove it for this stage.

I suspect this is going to go all the way, and as I have a bit of time on my hands I wanted to get ahead of the game in producing the evidence pack. I have all the documents insofar as the correspondence, and a PDF of the ICP Guidelines. probably need some more.
I once did an evidence bundle for a disputed TUPE case (employee not taken on by new owners) and it took ages to collate, highlight, reference and cross reference stuff. But I dont want to have to rush this when I dont have the time equally I dont want to waste time now preparing stuff I dont need and having to unpick all the referencing.

so :-
1. Is it worth getting ahead of myself? or could the bundle change dramatically/dont need stuff.
2. Correspondence with HX Parking and Gladstones has gone backwards and fwds multiple times. Is ALL this relevant or only those docs that I wish to refer to?
3. Several documents have been sent multiple times i.e. Gladsoned reply to a series of questions with exactly what they have sent before, and I resend the Questions document I have sent before asking for them to answer the questions. Are these considered separate documents? Do I need to include multiple times or do I just put a heading in saying, sent on xx/xx/xxxx, yy/yy/yyyy, zz/zz/zzzz?

.

OK quick Question.
As the Driver has NOT been declared, can I even use the below defence? i.e. if the Keeper is being pursued then the Keeper cannot state they did not enter into a contract due to...….. Surely as Keeper theey can only defend on the 'wasn't me gov' and cant pursue me as wasn't me who entered into a contract?

Whereas if the Driver was to be declared then all the below becomes relevant?


I have kept it relatively simple. I could include a lot more about Data Protection, but it doesn't seen worth it given I think there is pretty much an open and shut case (comments on that statement?)


1. It will be common ground that this claim refers to a private parking charge notice' (PCN) relating to a day when the Defendant paid and displayed and was authorised to park.
1.1 The Claimant has no cause for action based upon the facts of this case. Any breach of contractual terms is denied, and it is further denied that there was any agreement to pay the Claimant any £100 'parking charge' or any sum at all in addition to the parking tariff


1.2 It is admitted that the Defendant was the registered keeper of the vehicle in question at the time of the alleged incident.


2. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.


2.1 Payment for parking was made via payment machine and a ticket was issued and displayed in car windscreen.

2.2 The ticket covered the parking time of 101 minutesmentioned in the correspondence from the Claimant and the Defendant took notice of the offered expiry time on the Pay & Display Ticket ('PDT') receipt, and left promptly.

2.3 Despite the PDT stating an agreed parking licence time which the Defendant relied upon, the Defendant now notices that the PCN that later arrived by post unexpectedly referred to the whole duration 'on site' (from arrival in moving traffic until the point of exiting) of 101 minutes.

2.4 No reference was made to the disputed time interval in any correspondence and the Defendant has had to guess why a PCN was issued. In the Defendant's appeal last year (and a number of times subsequently) the Defendant has asked the Claimant to provide proof of the time period in dispute and confirm a ticket was purchased by the Defendant (effectively the licence)for a time period in excess of the time on site. The Defendant had no idea the Claimant was working to a hidden, undisclosed and unsynchronised timeline.

2.5 The Claimant has deliberately obfuscated the incident time in the correspondence and repeatedly ignored requests for clarification.

3. The Defendant did pay and display as soon as was reasonably possible given the circumstances on arrival. The car park was full on arrival and the Defendant had to wait until a space became available. A few minutes were taken waiting for a space, then parking, locking the car, walking over to the signs and machine and finding the change to obtain a PDT in good faith, which then printed out an agreed 'expiry time' that the Defendant understood was the authorised time to return to the vehicle and leave.

3.1 This exact scenario has been tested in the County Court before, and a transcript will be produced which (whilst not binding precedent) is on all fours with this case, namely (3JD08399) Parking Eye v Ms X at Altrincham 17/03/2014, where it was held that driving round for half an hour looking for a parking space was not parking, and until a driver had actually parked and read the signs, there was no parking contract possible relating to any obligation on a driver whilst driving round, to purchase a PDT.

3.2 The sign at the PDT machine states “Pay and Display Ticket must be purchased at the time of Parking”. i.e. no reference to grace periods, or entry to site.

3.3. If the Claimant argues that a driver should be held to a completely different and unexpected start time (on arrival past hidden ANPR cameras) then the PDT machine terms should clearly state that 'total stay' was being calculated, and the machine should have produced a PDT with the adjusted expiry, calculated by synchronising with the data stream fed from the initial ANPR image.

3.4. In Jolley v Carmel Ltd [2000] 2 EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

3.5. Thornton v Shoe Lane Parking [1971] 2 WLR 585 (Court of Appeal) holds good as the relevant case law, to confirm that the time of a parking licence in a car park begins when the driver pays the money and relies upon terms printed on the PDT. Further unexpected terms cannot be imposed.

4. A mandatory grace period is required by the International Parking Community (IPC) Code of Practice, which states a "sufficient amount of time to park and read any signs" must be provided.

5. Sign at the entrance to the site states “Please refer to the full terms and conditions located at the Pay and Display Machine”.

6. The sign next to the PDT machine states the conditions for which a PCN will be issued and as per 3.2 above, when a ticket should be purchased.

6.1. The Defendant avers there was no mention of a charge being issued during a 'grace period' (either before or after paid-for time), nor that the time on the PDT cannot be relied upon. Nothing warns a reasonably circumspect driver that he/she must guess the undisclosed ANPR timeline when they passed the threshold of the site, and effectively ignore the PDT expiry and leave early.

6.2. The Claimant is put to strict proof that the above situation was explained in clear, lit terms, and must provide evidence to overcome an inherent difficulty the Claimant will have, in convincing the Court that the two data streams/timelines (and their choice to prefer to use the undisclosed timeline, the one that creates an onerous burden upon paying drivers) pass the mandatory tests of fairness and transparency, imposed by the Consumer Rights Act 2015.

6.3. The bar for clear parking terms on signage was set by Denning LJ in J Spurling Ltd v Bradshaw [1956] referring to the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

6.4. The Defendant complied with all Terms and Condition, namely they bought a ticket at the time of Parking and agreed to pay a tariff, and did so, and received in exchange a PDT confirming the terms, and left the site prior to expiry of the ticket. Thus the Claimant's claim must fail.

7. Signs within the site are inconsistent/contradictory.

7.1. Signs that do include the mention of a grace period are not visible from a car that is either waiting for a space nor are they visible from a parked car due to the size of the sign, size of font and the height above ground.

7.2. The driver is referred (at the entrance to the site) to the FULL terms and conditions on the sign by the PDT machine. No mention of the grace period is included in the Full Terms and Conditions on that sign, so it reasonable for the driver to understand that they must abide by those printed on the sign, which has shown to be the case in 6.4 above.

7.3. As the signage is contradictory the Defendant avers that the driver cannot be bound by unknown terms that become apparent only weeks later when an unexpected PCN arrives at the home of the registered keeper. The driver was entitled to rely upon the reasonable understanding that the PDT from the machine spelt out the parking/expiry time, and that the contract began then and there. Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2 is the leading authority for the trite law position that a clause cannot be incorporated after a contract has been concluded, without reasonable notice before.

8. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. This case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices and completely different facts in a free car park.

9. Further, in order to issue and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. This Claimant has taken no steps to provide evidence that such authority existed (despite being requested to supply this information by the Defendant on a number of occasions), and that they were entitled to pursue paying drivers for a penalty for the time spent driving round before parking.

9.1. Even if the landowner contract allows for this, it is an unreasonable and unenforceable term, akin to charging a person at the point of joining a queue to obtain a ticket entitling them to (say) an hour on a golf course or tennis court - then penalising the person for an extra £100 if they rightly concluded from the information available, that they were indeed allowed the hour they paid for.

10. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.


I confirm that the facts in this defence are true to the best of my knowledge and belief.


Name/signature

Date