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ES Court Claim - defence drafted
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Hi all, I received a court letter with issue date 25/02/2019. I completed my AOS within a few days from this date. I need to get this defence sent ASAP. I would much appreciate any suggestions on any potential changes. In researching I have used material that is as similar as possible to my case. I paid particular attention to claxtome's previous post as they had a very similar case and were successful in getting ES/Gladstone to fold.
Background
1. I am the authorised registered keeper and the driver in question at the time of the alleged incident on XX/XX/XXXX.
1.1 The Defendant displayed a ticket on the dashboard of the vehicle when the car was locked and left parked. The ticket gave the Defendant a licence to park from XX/XX/XXXX to XX/XX/XXXX
1.2 The Defendant went about his business and returned on XX/XX/XXXX to find a PCN on the windscreen of the vehicle.
2. The Defendant appealed the Parking Charge Notice on XX/XX/XXXX. The defendant provided the claimant with a photo of the valid ticket within this appeal. This provided the Claimant with clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and condition (“T&C”) - as far as they were understood.
2.1 The charge was not cancelled and the appeal was not acknowledged by the Claimant. The Claimant has provided with the defendant with contact history made between the two parties via a subject access request. This appeal has been listed within this document but no reply was received by the Defendant.
2.2 The above constitutes a direct breach of Practice Direction pre-action conduct and protocols; specifically - paragraph 3 (Objectives), and 8 (Settlement and ADR). As such the court's attention is drawn to paragraphs 13 - 16.
2.3 The above is also a direct breach of the International Parking Community ("IPC") Code of Practice ("CoP"), Part B, Section 6. The CoP is effectively regulation for the private parking industry, as found by the supreme court judges in the Beavis Case.
3. Moreover 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).
3.1 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 20/09/2016 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''.
4. On the basis of the above, the Defendant requests the court strike out the claim for want of a cause of action and disregard of pre-court protocol.
4.1 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 (photo of signage at the car park on the day in question)
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
4.2 Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
The Defendant denies liability for the entirety of the claim for the following reasons:
5. A ticket was paid for and displayed when the car was locked and left parked. The Defendant has no knowledge of the point at which the ticket flipped over but made reasonable endeavours, and complied by conduct.
5.1 The Defendant cannot be responsible for the possibility that a gust of wind may have flipped the flimsy paper over.
5.2 The above scenario is not within a driver's control and it is evident 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.
5.3 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 have 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).
5.4 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.
5.5 A valid ticket was displayed in the front windscreen of the Defendant’s vehicle as demonstrated in the claimant’s own evidence. This shows the ticket serial number on the reverse of the ticket of xxxxxxx, this matches the defendant’s evidence of the front of the ticket with serial number xxxxxxx.
5.6 If the Claimant wanted to impose a different term to say display the ticket face-up then they should have drafted clear terms to that effect.
Limited contract
6. It will be seen from the defendant’s evidence that there is a scarcity of signage. The ‘secondary’ entrance to XXXXX XXXXXX car park, that was used to gain access by the defendant, has inadequate signage. Only on meticulous inspection of the entrance of the car park, it can be seen that there is a small cardboard cut-out above another businesses advertisement for ‘Car Sales’. This sign is far away from the entrance and in very small print.
6.1 Part E, Schedule 1 of the Code of Practice of the International Parking Community (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.”
6.2 Moreover, on entering the car park via the ‘secondary’ entrance, the defendant’s evidence will demonstrate that there is no clear signage on route to that bay that was parked in.
6.3 It can be seen from the defendant’s evidence that since the alleged incident on XX/XX/XXXX the claimant has changed the location of signage at this secondary entrance to the car park. Moving it closer to the entrance and so it is not obstructed by other businesses advertisements. This is perhaps as a result of such incidents occurring.
6.4 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.
Locus standi
7. The Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder and therefore would have no locus standi to bring this case per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd.
Claimant is seeking a penalty and inflated costs
8. 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.
8.1 £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.
8.2 The defendant requested evidence from the claimant, via a subject access request, to prove that a £60 cost was incurred as a result of soliciting Gladstone’s collection services. The claimant did not acknowledge this section of the subject access request.
8.3 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.
8.4 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.
9. The Defendant invites the court to strike out the claim for the above grounds.
I believe the facts stated in this defence are true.
Background
1. I am the authorised registered keeper and the driver in question at the time of the alleged incident on XX/XX/XXXX.
1.1 The Defendant displayed a ticket on the dashboard of the vehicle when the car was locked and left parked. The ticket gave the Defendant a licence to park from XX/XX/XXXX to XX/XX/XXXX
1.2 The Defendant went about his business and returned on XX/XX/XXXX to find a PCN on the windscreen of the vehicle.
2. The Defendant appealed the Parking Charge Notice on XX/XX/XXXX. The defendant provided the claimant with a photo of the valid ticket within this appeal. This provided the Claimant with clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and condition (“T&C”) - as far as they were understood.
2.1 The charge was not cancelled and the appeal was not acknowledged by the Claimant. The Claimant has provided with the defendant with contact history made between the two parties via a subject access request. This appeal has been listed within this document but no reply was received by the Defendant.
2.2 The above constitutes a direct breach of Practice Direction pre-action conduct and protocols; specifically - paragraph 3 (Objectives), and 8 (Settlement and ADR). As such the court's attention is drawn to paragraphs 13 - 16.
2.3 The above is also a direct breach of the International Parking Community ("IPC") Code of Practice ("CoP"), Part B, Section 6. The CoP is effectively regulation for the private parking industry, as found by the supreme court judges in the Beavis Case.
3. Moreover 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).
3.1 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 20/09/2016 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''.
4. On the basis of the above, the Defendant requests the court strike out the claim for want of a cause of action and disregard of pre-court protocol.
4.1 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 (photo of signage at the car park on the day in question)
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
4.2 Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
The Defendant denies liability for the entirety of the claim for the following reasons:
5. A ticket was paid for and displayed when the car was locked and left parked. The Defendant has no knowledge of the point at which the ticket flipped over but made reasonable endeavours, and complied by conduct.
5.1 The Defendant cannot be responsible for the possibility that a gust of wind may have flipped the flimsy paper over.
5.2 The above scenario is not within a driver's control and it is evident 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.
5.3 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 have 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).
5.4 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.
5.5 A valid ticket was displayed in the front windscreen of the Defendant’s vehicle as demonstrated in the claimant’s own evidence. This shows the ticket serial number on the reverse of the ticket of xxxxxxx, this matches the defendant’s evidence of the front of the ticket with serial number xxxxxxx.
5.6 If the Claimant wanted to impose a different term to say display the ticket face-up then they should have drafted clear terms to that effect.
Limited contract
6. It will be seen from the defendant’s evidence that there is a scarcity of signage. The ‘secondary’ entrance to XXXXX XXXXXX car park, that was used to gain access by the defendant, has inadequate signage. Only on meticulous inspection of the entrance of the car park, it can be seen that there is a small cardboard cut-out above another businesses advertisement for ‘Car Sales’. This sign is far away from the entrance and in very small print.
6.1 Part E, Schedule 1 of the Code of Practice of the International Parking Community (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.”
6.2 Moreover, on entering the car park via the ‘secondary’ entrance, the defendant’s evidence will demonstrate that there is no clear signage on route to that bay that was parked in.
6.3 It can be seen from the defendant’s evidence that since the alleged incident on XX/XX/XXXX the claimant has changed the location of signage at this secondary entrance to the car park. Moving it closer to the entrance and so it is not obstructed by other businesses advertisements. This is perhaps as a result of such incidents occurring.
6.4 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.
Locus standi
7. The Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder and therefore would have no locus standi to bring this case per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd.
Claimant is seeking a penalty and inflated costs
8. 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.
8.1 £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.
8.2 The defendant requested evidence from the claimant, via a subject access request, to prove that a £60 cost was incurred as a result of soliciting Gladstone’s collection services. The claimant did not acknowledge this section of the subject access request.
8.3 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.
8.4 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.
9. The Defendant invites the court to strike out the claim for the above grounds.
I believe the facts stated in this defence are true.
0
Comments
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Hi and welcome.Hi all, I received a court letter with issue date 25/02/2019. I completed my AOS within a few days from this date. I need to get this defence sent ASAP.
With a Claim Issue Date of 25th February, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 1st April 2019 to file your Defence.
That's nearly two weeks away. Loads of time to produce a Defence, and it's good to see that you are not leaving it to the very last minute.
When you are happy with the content, your Defence should be filed via email as suggested here:-
Print your Defence.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
- Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
- Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
- Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.
0 - Sign it and date it.
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thanks for the reply KeithP. I will take that on board. I will continue researching where I can this weekend.
If anyone has any points on my defence where I can improve it would be much appreciated. I am conscious that it is quite wordy but I want to get every point across possible that will aid me.0 -
Leave #4 in but remove #9 as it's repetition.
Then remove all this under the main #4 as this is not what you want:4.1 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 (photo of signage at the car park on the day in question)
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
4.2 Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
thank you Coupon-Mad I appreciate your response. I have made your suggested changes.
I sent my defence to CCBCAQ@Justice.gov.uk yesterday and this has already been reflected in my MCOL claim online.0 -
I have recently received a letter from Gladstone Solicitors headed 'Directions questionnaire' with some prefilled text boxes and spiel on why the hearing should be done via paper.
My understanding is that this is not the official court Directions questionnaire it is a tactic by GS to add pressure. My understanding is that I can ignore this letter and wait for the letter from the court and then push for an oral hearing.0 -
Don't points 7 & 8 in the list in post #2 above explain that adequately?I have recently received a letter from Gladstone Solicitors headed 'Directions questionnaire' with some prefilled text boxes and spiel on why the hearing should be done via paper.
My understanding is that this is not the official court Directions questionnaire it is a tactic by GS to add pressure. My understanding is that I can ignore this letter and wait for the letter from the court and then push for an oral hearing.0 -
Hi all, I need to submit my Witness Statement by 4pm on 04/11/2019. I am not sure how to submit this statement and the bundle of evidence (which includes video footage) i.e. do I need to physically go to court and present it or can I email it? Any guidance on this would be appreciated. The WS is below:
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 morning of XX/XX/XXXX I entered Winwick Street Car Park through the secondary entrance located via ‘A1 Car Sales’. It can be seen from the photo evidence that it is not clear and obvious that the carpark is operated by Parking Enforcement ltd, See page XX. On close inspection, it can be seen there is a small cardboard cut-out for ES above the A1 car sales advertisement. The text is not legible in relation to the route the driver would take in entering the carpark. Schedule 1 – Signage of the Code of Practice of the International Parking Community (of which ES is a member), states that “The size of the text on the sign must be appropriate for the location of the sign and should be clearly readable by a Motorist having regard to the likely position of the Motorist in relation to the sign.”
3. Since the alleged incident the advertising billboard has been changed to ‘Winwick Street Carpark’ which draws the driver’s attention to the fact this is a private car park more effectively. Also, it appears that ES has since added more signs, possibly as a result of such incidents occurring. Although, again, the text is still very small in relation to where the motorist is on the road. See page XX.
4. I have produced a map of the car park, page XX, which shows the entrance, point A, where I entered the car park and where I parked the vehicle, point B.
5. Not only was there an absence of clear signage at the entrance of the car park, there was not clear signage on the route the driver took to the bay that was parked in, I have provided video evidence of this, see page XX. This video evidence makes any template layouts of the car park with signs dotted around, provided by the claimant, redundant. On this basis: no consideration flowed between the parties and no contract was established.
6. I had purchased a weekly parking ticket previously, from the pay and display machine on XX/XX/XXXX, which gave me license to park until XX/XX/XXXX. I placed the ticket so it was displayed on the dashboard of the vehicle. I then opened the door and exited the vehicle before shutting the door behind me and locking.
7. I dispute that there was any clear signage on the day in question, however for the sake of argument, the Claimant has provided evidence of the specimen ‘contract’ sign, see page XX. The Claimant’s evidence of the specimen sign 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.
8. After returning from work I returned to my car that evening to find a parking charge notice propped on the windscreen.
9. The claimants own evidence of the vehicle, shows the ticket face down on the dashboard, see Page XX. This shows the ticket serial number on the reverse of the ticket of xxxxxxx, this matches the defendant’s evidence of the front of the ticket with serial number xxxxxxx, see Page XX. Proving that the defendant had displayed a valid ticket. In any case, the ticket attendant would be easily capable of correlating this with the ticket machine.
10. Further, if you look closely at the ticket you can see it is made of a flimsy piece of paper with no adhesive so that it could be fixed in place on the dashboard. I would be interested to know how many Parking Charge Notices for similar circumstance occur for this car park.
11. The Claimants own evidence, see Page XX, also shows an overcast sky which is suggestive of how gusty it was on the day in question. Possibly explaining how the ticket flipped over.
12. 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.
13. 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: (Website URL). 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. He said: “I am not aware of any signs in the car park suggesting the use of adhesives by motorists when parking their cars.”
14. On the XX/XX/XXXX I wrote to the Claimant explaining the circumstances on the day and why I felt I was not liable for the parking charge, a copy of my appeal is on pages XX, which included a copy of the ticket purchased and displayed on the day. The appeal was not successful so I was then offered the opportunity to appeal to the ‘Independent Appeals Service’. I appealed to the IAS on XX/XX/XXXX, see page XX. This appeal was also rejected.
15. The IAS has been regularly described in online forums as a ‘Kangaroo Court’: (Website URL).
Initially, the British Parking Association offered the POPLA service. Statistics show that around 50% of appeals were upheld by POPLA. A new trade association, the Independent Parking Committee, then formed, run by Will Hurley and John Davies of Gladstones Solicitors. They created their own appeals arm, called the Independent Appeal Service, which was run on entirely different lines. Parking Review reported that only 20% of appeals were upheld. An email from Northern Parking Services accidentally sent to a motorist rather than to 'Darren' highlights succinctly how the IAS gives the appearance of a fair and just process, even though the verdict has in reality already been decided before the process has begun: “Should I add this to the IAS so he can futilely go through the motions?”
16. On the XX/XX/XXXX I received a demand with increased amount owing with no explanation for the increased amount and this letter used very threatening language in relation to a potential bailiff visit in order to seize goods, see page XX. 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).
17. On the XX/XX/XXXX I then received a Letter Before Claim (page XX of XXX1). Once again the sum of money demanded had increased, with no explanation.
18. I then received a Claim Form on XX/XX/XXXX (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 “concise statement of the facts on which the claimant relies” as is required by CPR 16.4 1(a). There is no information regarding what the alleged contract was nor anything which could be considered a fair exchange of information. 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).
19. 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 27.14 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 £191.45 now sought.
20. 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. There must either have been a gust of wind when I closed the door or 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.
21. 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.
I believe that the facts stated in this statement is true0 -
Errm...covered only yesterday, twice...I am not sure how to submit this statement and the bundle of evidence (which includes video footage) i.e. do I need to physically go to court and present it
https://forums.moneysavingexpert.com/showthread.php?p=76446627#post76446627
https://forums.moneysavingexpert.com/showthread.php?p=76446527#post76446527PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
thank you Coupon-mad the links have helped a lot.
My only other question is, if the Evidence has to be submitted to the Courts in a binder (none-digitally), how am I going to provide my Video Evidence?0
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