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fluttering ticket going to court
Comments
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nosferatu1001 wrote: »More likely Pepipoo -> Council tickets forum
Huh? This thread is regarding a Private Parking Company PCN, isn't it?0 -
Latest draft with all comments/suggestions so far included->
I, XXX, of YYY will say as follows:
1. I am the Defendant in this matter. I am an unrepresented consumer who is not experienced at attending county court. In this statement I will refer to the documents contained in exhibit marked XXX1, by page number[STRIKE], and Claimant’s Accredited Trade Organisation (ATA) (International Parking Community) Accredited Operator Scheme Code of Practice, by section numbers
[/STRIKE].
2. On the XXX May 2017 I parked in XXX Car Park, walked to the nearest pay and display machine, purchased a ticket for the day and, confirm as matter of fact, I displayed it face up on the dashboard of the car. I am careful with parking tickets to ensure they are displayed correctly after a previous event a long time ago where a ticket at the end of the day was found in the foot-well. This was a council car park in the Lake District and when I appealed with a copy of the ticket the Local Council quashed the parking fine.
3. At the end of the day I removed the ticket from the dashboard and drove off. No parking charge notice was attached to the windscreen so there was no indication that anything was untoward.
4. Just over a week later upon returning home I discover an envelope containing a postal Parking Charge Notice from <ES>; as evidenced by the Claimant. This was a surprise to me as would have expected to have seen a parking charge notice attached to the windscreen if an alleged offence on the day had occurred. Fortunately, by looking in my car bin, I found the ticket from the relevant day. A postal PCN for the scenario made me wonder if the parking firm is hoping the purchased parking ticket would have been thrown away.
5. If you look closely at the ticket you can see it is made of a flimsy piece of paper with no sticky part to it so that it could be fixed in place on the dashboard or windscreen. I would be interested to know how many Parking Charge Notices for similar circumstance occur for this car park.
6. The photo in the Parking Charge Notice letter clearly shows the ticket I purchased on the day displayed upside down on the dashboard. The photos of the car show a sunny day but don’t show how windy the big open car park was on the day. See page XX to see pictures of where the car is parked in the car park.
7. The photo in the Parking Charge Notice letter also shows a serial number on the reverse of the ticket which, considering the Parking Charge Notice wasn’t given on the day, allows plenty of time for the ticket to be traced to the valid ticket purchased on the day particularly as you have to enter the Registration of the Car into the ticket machine and is printed on the ticket.
8. The Claimant’s evidence of a specimen sign (Contract) states “A valid ticket must be purchased to park on this site and be displayed clearly in your front windscreen”. This from the Claimant’s own evidence was clearly adhered to. Any breach (which, for avoidance of doubt, is denied) was de minimis.
9. I have produced a map of the car park, page XX, which shows the entrance A where I entered the car park, position B where I parked and the location of the ticket machine used as C on the map.
10. On the XX June 2017 I wrote to the Claimant explaining the circumstances on the day and why I felt I was not liable for the parking charge, and a copy of my appeal is on pages XX and XX of XXX1 which included a copy of the ticket purchased and displayed on the day.
11. The appeal was not acknowledged or answered and on the XX June 2017 I received a demand with increased amount owing with no explanation for the increased amount and this letter threatened me with further debt recovery (page XX of XXX1). No figure for additional charges was agreed, or communicated to me, nor could it have formed part of the ‘alleged’ contract because no such indemnity costs were quantified on the Claimant’s 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. (See specimen sign on page XX of Claimant’s Witness Statement).
12. On the XX July 2017 I then received a Letter Before Claim (page XX of XXX1). Once again the sum of money demanded had increased, with no explanation. I responded (page XX of XXX1) on 10th July 2017, asking for more details and a copy of all documents purporting to the matter.
13. On the XX August 2017 I received a reply (pages XX and XX of XXX1) which unfortunately did not answer my questions.
14. On the XX August 2017 I responded to the Claimant’s solicitors (page XX of XXX1) once again asking for further details. With this letter I included a copy of the ticket purchased and displayed on the day. This letter was ignored.
15. I then received a Claim Form on XX September 2017 (page xx of XXX1). The Particulars of Claim set out in the Claim Form do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies what the terms of the alleged contract were, or how they were breached. The Particulars are not “clear and concise” as is required by CPR 16.4 1(a). There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. It just states “parking charges” which does not give any indication of on what basis the claim is brought. The claimant also failed to provide a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A).
16. I dispute that the Claimant has incurred £50 Solicitors costs to pursue an alleged £100 debt, the costs of which are in any case not recoverable. The claimant has described the charge of £50 as ‘legal representative’s costs’ not ‘contractual costs’ CPR 31.14 does not permit these to be recoverable in the Small Claims Court
The Claimant has at no time provided an explanation of how the sum claimed has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to the £160 now sought.
17. Under Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (amended) A parking operator needs to have Advertising Consent for signs displayed in the car park. The only relevant Advertising Planning Consent found for the car park in question has now lapsed (pages XX-YY of XX1). I therefore hold to strict proof that they have Claimant has advertising consent for signage.
18. On the day in question I had every intention to pay for parking, and I did so, and I genuinely thought I had complied with the terms of parking in the car park (and was justified in that belief). There must either have been a gust of wind when I closed the door or one of the windows may have been slightly open and it may have flipped over when I was away from the car, and this small human error comes under the de minimis principle, particularly as the ticket has a serial/reference number on the back.
19. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours and takes reasonable steps to comply with contractual terms, should not be penalised for breach outside of their control.
20. Fluttering tickets are routinely accepted as a valid defence to Council Penalty Charge Notices and whilst contractual principles are not applied to such notices, it is indicative of the fact that circumstances out of your control, and where the driver has clearly paid for the parking, are deemed to be a good reason for those notices to be cancelled.
I believe that the facts stated in this statement is true0 -
In the bundle of documents you need to include something to back up the fluttering ticket/council information, not sure where to find this but it will be out there somewhere, probably on this forum.
I am struggling to find anything.
The following mentions cases HV05042K, IP05007F, BB05022C. Can I look at them or just quote them?
http://www.manchester.gov.uk/download/meetings/id/3259/joint_report_of_the_parking_adjudicators_for_england_and_wales_2006
Also found this report in daily mail about Canterbury Council->
http://www.dailymail.co.uk/news/article-3191707/Council-ordered-refund-10-000-parking-fines-given-drivers-valid-tickets-flipped-dashboard.html
And similar->
http://www.kentonline.co.uk/canterbury/news/drivers-win-u-turn-on-flipped-over-41244/0 -
Thought I'd seen that contract wording somewhere before
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I think I will include this in my WS as evidence for councils cancelling PCNs for fluttering tickets:I include the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' 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."’
And include the report in my evidence pack0 -
Will send this on Monday unless anyone else has any further comments:
I, XXX, of YYY will say as follows:
1. I am the Defendant in this matter. I am an unrepresented consumer who is not experienced at attending county court. In this statement I will refer to the documents contained in exhibit marked XXX1, by page number.
2. On the XXX May 2017 I parked in XXX Car Park, walked to the nearest pay and display machine, purchased a ticket for the day and, confirm as matter of fact, I displayed it face up on the dashboard of the car. I am careful with parking tickets to ensure they are displayed correctly after a previous event a long time ago where a ticket at the end of the day was found in the foot-well. This was a council car park in the Lake District and when I appealed with a copy of the ticket the Local Council quashed the parking fine.
3. At the end of the day I removed the ticket from the dashboard and drove off. No parking charge notice was attached to the windscreen so there was no indication that anything was untoward.
4. Just over a week later upon returning home I discover an envelope containing a postal Parking Charge Notice from <ES>; as evidenced by the Claimant. This was a surprise to me as would have expected to have seen a parking charge notice attached to the windscreen if an alleged offence on the day had occurred. Fortunately, by looking in my car bin, I found the ticket from the relevant day. A postal PCN for the scenario made me wonder if the parking firm is hoping the purchased parking ticket would have been thrown away.
5. If you look closely at the ticket you can see it is made of a flimsy piece of paper with no sticky part to it so that it could be fixed in place on the dashboard or windscreen. I would be interested to know how many Parking Charge Notices for similar circumstance occur for this car park.
6. The photo in the Parking Charge Notice letter clearly shows the ticket I purchased on the day displayed upside down on the dashboard. The photos of the car show a sunny day but don’t show how windy the big open car park was on the day. See page XX to see pictures of where the car is parked in the car park.
7. The photo in the Parking Charge Notice letter also shows a serial number on the reverse of the ticket which, considering the Parking Charge Notice wasn’t given on the day, allows plenty of time for the ticket to be traced to the valid ticket purchased on the day particularly as you have to enter the Registration of the Car into the ticket machine and is printed on the ticket.
8. The Claimant’s evidence of a specimen sign (Contract) states “A valid ticket must be purchased to park on this site and be displayed clearly in your front windscreen”. This from the Claimant’s own evidence was clearly adhered to. Any breach (which, for avoidance of doubt, is denied) was de minimis.
9. I have produced a map of the car park, page XX, which shows the entrance A where I entered the car park, position B where I parked and the location of the ticket machine used as C on the map.
10. On the XX June 2017 I wrote to the Claimant explaining the circumstances on the day and why I felt I was not liable for the parking charge, and a copy of my appeal is on pages XX and XX of XXX1 which included a copy of the ticket purchased and displayed on the day.
11. The appeal was not acknowledged or answered and on the XX June 2017 I received a demand with increased amount owing with no explanation for the increased amount and this letter threatened me with further debt recovery (page XX of XXX1). No figure for additional charges was agreed, or communicated to me, nor could it have formed part of the ‘alleged’ contract because no such indemnity costs were quantified on the Claimant’s 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. (See specimen sign on page XX of Claimant’s Witness Statement).
12. On the XX July 2017 I then received a Letter Before Claim (page XX of XXX1). Once again the sum of money demanded had increased, with no explanation. I responded (page XX of XXX1) on 10th July 2017, asking for more details and a copy of all documents purporting to the matter.
13. On the XX August 2017 I received a reply (pages XX and XX of XXX1) which unfortunately did not answer my questions.
14. On the XX August 2017 I responded to the Claimant’s solicitors (page XX of XXX1) once again asking for further details. With this letter I included a copy of the ticket purchased and displayed on the day. This letter was ignored.
15. I then received a Claim Form on XX September 2017 (page xx of XXX1). The Particulars of Claim set out in the Claim Form do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies what the terms of the alleged contract were, or how they were breached. The Particulars are not “clear and concise” as is required by CPR 16.4 1(a). There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. It just states “parking charges” which does not give any indication of on what basis the claim is brought. The claimant also failed to provide a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A).
16. I dispute that the Claimant has incurred £50 Solicitors costs to pursue an alleged £100 debt, the costs of which are in any case not recoverable. The claimant has described the charge of £50 as ‘legal representative’s costs’ not ‘contractual costs’ CPR 31.14 does not permit these to be recoverable in the Small Claims Court
The Claimant has at no time provided an explanation of how the sum claimed has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to the £160 now sought.
17. Under Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (amended) A parking operator needs to have Advertising Consent for signs displayed in the car park. The only relevant Advertising Planning Consent found for the car park in question has now lapsed (pages XX-YY of XX1). I therefore hold to strict proof that they have Claimant has advertising consent for signage.
18. On the day in question I had every intention to pay for parking, and I did so, and I genuinely thought I had complied with the terms of parking in the car park (and was justified in that belief). There must either have been a gust of wind when I closed the door or one of the windows may have been slightly open and it may have flipped over when I was away from the car, and this small human error comes under the de minimis principle, particularly as the ticket has a serial/reference number on the back.
19. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours and takes reasonable steps to comply with contractual terms, should not be penalised for breach outside of their control.
20. Fluttering tickets are routinely accepted as a valid defence to Council Penalty Charge Notices and whilst contractual principles are not applied to such notices, it is indicative of the fact that circumstances out of your control, and where the driver has clearly paid for the parking, are deemed to be a good reason for those notices to be cancelled.
21. I include the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' 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/download/meetings/id/3259/joint_report_of_the_parking_adjudicators_for_england_and_wales_2006
‘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."’
I believe that the facts stated in this statement is true0 -
nosferatu1001 wrote: »Read the posts above. They’re suggesting using fluttering tickets from council PCNs in the defence.
Having re-read the post above yours, your comment now makes sense.
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yes, that's the one I was thinking of.I think I will include this in my WS as evidence for councils cancelling PCNs for fluttering tickets:
And include the report in my evidence packAlthough a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.0 -
The only problem I can see with including the full report in my evidence, link below, is there are bits in there that help the Claimant so think I will include just the paragraph and not include the full report as evidence
http://www.manchester.gov.uk/egov_download...Report_2006.pdf0
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