Sennen PCN

So after ignoring a few more letters from the parking company and their appointed legal representative (including the letter of claim - oops) we are now at the court stage. The claim form was issued on 3 May 2019 to which we have responded with an acknowledgement of service, stating that we intend to defend in full. I believe this makes the 'deadline' for submitting the defence Wednesday 5th June.

Having now tried to get my head back into this on behalf of my son, I realise that we should have responded to the letter of claim and also submitted a SAR to get all of the details from the claimant before this stage. Is it too late to do this now?

As fate would have it, I have come across a thread from 69jase whose case seems to be almost a carbon copy of my sons, ticket blown upside down etc, at the same place in Cornwall! Thread title is: "Penalty Charge Notice issued at Sennen Cove Beach car park for not displaying a valid ticket - 69jase". The differences in the case now are basically that he or she has tried to appeal, spoke to the parking attendant at the time, wrote to MP etc. We haven't done any of those things. Literally the only action we have taken so far is the AoS via MSOL.

I have prepared a draft defence based heavily on what I have found in 69jase's thread, minus the bits that are not relevant, and pasted below. Would someone be kind enough to read this draft please and advise on whether any amendments are needed or whether there are any other actions still to take at this late stage? We would be extremely grateful for any assistance. I will need to renumber the points in the defence when I re-draft it.

In the County Court
STATEMENT OF DEFENCE
Claim no. xxxxxxxx
Claimant: KBT Cornwall Limited
Defendant: xxxxxxx


DEFENCE
Preliminary matters
1. The Particulars of Claim do not meet the requirements of Practice Direction 16 7.5
1.1 The claim particulars fail to specify how the terms of parking were breached and fail to fulfil CPR Part 16.4 by not including a statement of the facts on which the claimant relies, only referring to parking charges incurred 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 and their solicitor are known to be a serial litigants and issuer of speculative claims, using template particulars of claim which arise from an automated template, with no due diligence.
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 deficient and failed 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 claim was struck out.
2. 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.
2.1 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) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
c) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
d) If Interest charges are being claimed, the basis on which this is being claimed
3.2 Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
Background
4. I am XXX, the Defendant, and both the authorised registered keeper and driver in question at the time of the alleged incident.
5. The Defendant denies liability for the entirety of the claim for the following reasons:
5.1 A valid ticket was paid for and displayed so all details could be seen, and was in place the right way up prior to the car being 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.
5.2 The Defendant cannot be responsible for the possibility that:
a) A gust of wind may have later moved the ticket from sight, despite the windows being shut and the doors being locked.
b) The employee of the Claimant may have caused the ticket to move, perhaps accidentally when leaning across the car or pushing between vehicles. No suggestion of foul play is intended.
c) A passer-by may have leaned on the car to get to their own vehicle or nearby offices.
5.3. 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.
5.5 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.
5.6 A valid ticket was displayed in the front windscreen of the Defendant’s vehicle. 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.
5.7 It is not disputed that the ticket gave the Defendant a licence to park at the time the PCN was issued. The ticket was displayed on the dashboard at all times. This will be demonstrated by the Claimant’s own evidence.
5.8 The Claimant’s evidence will show the back of the ticket has a serial number of XXXXXXXX. The Defendant’s evidence will also show the front and back of the ticket has the same serial number of XXXXXXXX.
5.10 The Defendant asserts that it is reasonable for a consumer to believe that the terms which specify the main subject matter of the contract are those emphasised as terms and conditions on the signage in red, bulleted text, given the distinct formatting and semantics. The term that ‘Retrospective evidence of authority to park will not be accepted’ does not specify the main subject matter of the contract. It cannot therefore be excluded from an assessment of fairness per Section 64(1) of the CRA 2015.
5.11 The terms on the Claimant's signage were also displayed in a font and colour combination which was too small and difficult to be easily read. It was also in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract to pay a penalty charge, which was never communicated adequately, nor accepted by conduct. Whilst the tariffs per hour were in the largest font, any penalty was hidden in small print and nothing alerting drivers to a possible additional £100 was displayed by way of 'contract' at the PDT machine, which was the point of sale.
6. 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.
6.1 Parking Eye Ltd v Beavis [2015] UKSC 67 showed 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.
Claimant is seeking a penalty and inflated costs
7. The Claimant seeks £160 which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant 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.
7.2 £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. No evidence of a payment to a debt collector has been provided.
7.3 There is no possible commercial justification for the Claimant to found an action based on such a trivial error. The Beavis v ParkingEye [2015] Judges at the Court of Appeal stated there was a commercial justification as it was free car park and needed to prevent overstays of the free 2 hour stay. Whereas in this case the car park is a Pay and Display car park where revenue is gained as people need to pay to park there for an agreed period of time.
7.4 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.
7.5 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.
7.6 I deny the Claimant is entitled to any interest charges.
8. The Defendant invites the court to consider this matter a trifle; the Defendant has acted in complete good faith; made reasonable endeavours to adhere to the terms of a contract and the Claimant has suffered no actual loss. Therefore, the Claimant has spent X months aggressively seeking extravagant sums for a presumed failure to display a valid parking ticket; evidence for the validity of which has never been questioned.
8.1. The Defendant requests the court use its case management powers to strike the claim out as the Claimant has failed to provide basic details about its claim; is seeking an extravagant and unconscionable penalty and is automating its use of the court process against the public interest to intimidate and harass those acting in good faith.

Statement of Truth
I believe that the facts stated in this defence to be true.

Printed Name

Signed Dated