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  • FIRST POST
    • nochargenotice
    • By nochargenotice 11th Apr 16, 9:39 PM
    • 36Posts
    • 22Thanks
    nochargenotice
    ES Parking Enforcement Ltd
    • #1
    • 11th Apr 16, 9:39 PM
    ES Parking Enforcement Ltd 11th Apr 16 at 9:39 PM
    Hi,


    This company operating in Warrington placed a PCN on the car, despite having a valid ticket. I did some research on here, and another similar site and on the BMPA.


    Waited until their letter arrived in the post, then I sent a reply to reject the charge (thanks for the template in the "Newbies" thread). The letter was rejected and they now say they wont engage with IAS as their procedures haven't been followed.


    Options given by ES in their reply are (i) Pay up OR (ii) They may seek to recover the charge through debt recovery or may proceed with court action.


    I have already said in my letter that I wont respond to debt collection letters.


    If anyone can offer some guidance now it would be appreciated.


    Thanks.
Page 2
    • nochargenotice
    • By nochargenotice 15th Dec 17, 11:29 PM
    • 36 Posts
    • 22 Thanks
    nochargenotice
    Thanks claxtome.

    Yes, explicit in change of address.

    I found your thread before and found it very useful.
    • nochargenotice
    • By nochargenotice 18th Dec 17, 9:44 PM
    • 36 Posts
    • 22 Thanks
    nochargenotice
    Critique of letter to gladstone
    Hi,

    Critique on the below is welcomed:

    To acknowledge receipt of your latest letter dated XX/XX/XX.
    Please be advised of the following:
    1. You were advised in my previous letter (dated XX/XX/XX) for all correspondence relating to this matter. The address is again stated explicitly below:

    (Address)

    You should use the address quoted for any future correspondence. No liability will be accepted for any delay or failure of communication due to your clients use or your use of any other address. Your client has also continued to pursue this with incorrectly addressed correspondence, despite being informed since my first response of the correct address.

    As your latest letter was posted to an incorrect address, it was received after the XX day response period quoted in your letter. As you were aware of the correct address you must now issue revised correspondence, to the above address, with a response time that allows for the revised date of issue.

    2. Your letter still contains insufficient detail of the claim and fails to provide all copies of evidence your client places reliance upon.

    Your client must know that on 01 October 2017 a new protocol is applicable to debt claims. Since proceedings have not yet been issued, the new protocol clearly applies and must be complied with.

    Your letter lacks specificity and breaches both the requirements of the previously applicable Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. Your letter fails to address paragraph 2.1b in advising of an Alternative Dispute Resolution ) ADR. You should advise your client that the offer of an alternative to legal proceedings, namely the utilisation of the services of a completely independent ADR (Alternative Dispute Resolution) service suited to parking charges, and will be given full consideration. This does not include the IAS appeal service - which lacks any transparency and possibly any independence from the IPC - unlike the alternative offered by the British Parking Association, POPLA, which is transparent and has been shown to be independent. Your letter fails to address paragraph 3.3, you have been explicitly informed of the address for correspondence relating to this matter. Your letter also fails to address the requirements of paragraphs 6.1, 6.2, 6.3 and 6.4.

    Please treat this letter as a formal request for all of the documents / information that the protocol now requires your client to provide. Your client must not issue proceedings without complying with that protocol. Rights are reserved to draw any failure of the Claimant to comply with the protocol to the attention of the court and to ask the court to stay the claim and order your client to comply with its pre-action obligations, and when costs come to be considered.

    Regarding costs, you are reminded that paragraph 2.1 c of the Pre-Action Protocol for Debt claims requires you and your client to avoid running up costs. Further, the addition of any debt collector 'costs' is not my liability because the POFA 2012 can only potentially hold a registered keeper liable if certain provisions have been met and even then, the 'amount of the parking charge' is the only amount pursuable.

    As solicitors you must surely be familiar with the requirements of both the Practice Direction applicable pre-1 October and the Protocol which applies thereafter (and your client, as a serial litigator of small claims, should likewise be aware of them). As you (and your client) must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time. It is astounding that a firm of Solicitors is sending a consumer a vague 'Letter before Claim' with incomplete evidence in complete ignorance of the pre-existing Practice Direction and the new Protocol.

    Nobody, including your client, is immune from the requirements and obligations of the Practice Direction and now the Protocol.

    Your client is required to comply with its obligations by sending the following information/documents:

    1. An explanation of the cause of action.
    2. What the details of the claim are; where it is claimed the vehicle was parked, for how long, how the monies being claimed arose and have been calculated.
    3. You state the claim is for a contractual breach. In this case, what is the date of the agreement? Provide names of the parties to it and provide a copy of that contract.
    4. Is the claim for trespass? If so, provide details.
    5. Provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 “establishing yourself as the creditor”.
    6. A plan showing where any signs were displayed.
    7. Details of the signs displayed (size of sign, size of font, height at which displayed).
    8. Provide details of the original charge, and detail any interest and administrative or other charges added.
    9. Provide a copy of the Information Sheet and the Reply Form.

    If your client does not provide this information then you are on notice that reliance will be placed on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and (c) and 16 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.

    Until your client has complied with its obligations and provided this information, it is not possible to respond properly to the alleged claim and to consider the position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then an immediate stay, pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided, will be requested.
    Please provide all information requested in this letter, to the correct address, within 30 days of the date of this letter.
    Yours
    • Coupon-mad
    • By Coupon-mad 18th Dec 17, 11:31 PM
    • 61,752 Posts
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    Coupon-mad
    Looks good to go.

    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • nochargenotice
    • By nochargenotice 15th Jan 18, 8:53 PM
    • 36 Posts
    • 22 Thanks
    nochargenotice
    Hi,

    I have now got Gladstone's response, again does not comply with practice direction. I'll respond to the lbc, and post again with defence.
    Last edited by nochargenotice; 15-01-2018 at 8:54 PM. Reason: Wording correction
    • nochargenotice
    • By nochargenotice 16th Jan 18, 10:11 PM
    • 36 Posts
    • 22 Thanks
    nochargenotice
    Guidance before compiling Response
    Hi All,
    Before I compile my response (in accordance with Pre-Action Protocol) to Gladstones' incomplete LBC, would you advise on these points please:

    - I have always responded as keeper, and have never named the driver. I will stick with this, but wondered if it will stand up in court?

    - First response to ES was headed "without prejudice", now I understand this cannot be used in court. ES responded to the letter, which they said was a rejection of the "appeal" (the letter was a statement of fact and a list of questions, not an appeal). Can I use my letter in court, or use ES' response to demonstrate unreasonable behaviour in regard to the claim?

    - I was hounded by Wright Hassal in the period between the incident and before Gladstones got involved. Is their correspondence admissible to include as demonstrating unreasonable behaviour?

    Thanks again in advance.
    • Coupon-mad
    • By Coupon-mad 16th Jan 18, 10:24 PM
    • 61,752 Posts
    • 74,661 Thanks
    Coupon-mad
    I have always responded as keeper, and have never named the driver. I will stick with this, but wondered if it will stand up in court?
    Yes it can, if you need to take that stance and can carry it off honestly, but:

    - do you need to hide behind the POFA, were they non-compliant anyway?
    - many situations are better defended as driver (if you were) to give an honest account of lack of signs, etc.


    First response to ES was headed "without prejudice"
    Why?


    I was hounded by Wright Hassall in the period between the incident and before Gladstones got involved. Is their correspondence admissible to include as demonstrating unreasonable behaviour?
    Yes, why not, it's all part & parcel of demonstrating the Claimant's intention: clearly not to negotiate or narrow the issues as per the pre-court protocol, but to frighten & intimidate consumers into being scared about court/bailiffs/CCJs such that people pay up in their droves.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • nochargenotice
    • By nochargenotice 17th Jan 18, 8:19 PM
    • 36 Posts
    • 22 Thanks
    nochargenotice
    Thanks coupon-mad.

    Responses:


    I have always responded as keeper, and have never named the driver. I will stick with this, but wondered if it will stand up in court?

    Yes it can, if you need to take that stance and can carry it off honestly, but:

    - do you need to hide behind the POFA, were they non-compliant anyway?
    - many situations are better defended as driver (if you were) to give an honest account of lack of signs, etc.
    They issued the NTK in time, generally they were compliant.
    From honesty point of view, would rather go with being the driver.

    First response to ES was headed "without prejudice"

    Why?
    I thought that was best thing to do at the time.

    Re: WH hounding, thanks, will include.
    • claxtome
    • By claxtome 21st Jan 18, 4:33 AM
    • 613 Posts
    • 730 Thanks
    claxtome
    A couple of flipped ticket cases gone to court this week where the judge sided with the defendant:
    http://forums.moneysavingexpert.com/showthread.php?t=5779740

    In the first you can see why it is important to Appeal and not ignore letters.

    Don't give up hope
    • nochargenotice
    • By nochargenotice 24th Jan 18, 10:15 PM
    • 36 Posts
    • 22 Thanks
    nochargenotice
    LBCCC - draft response for critique
    Hi All,

    PLease see below structure of my reponse to Gladstones LBCCC. I have attempted to lay this out using numbering that aligns with the Pre-Action Protocol. I will attempt to upload pertinent redacted correspondence by the weekend. (for guidance, the information in claxtome's posts is strikingly similar to the correspondence in my posession).

    Any comments welcome.

    Thanks in advance.

    I refer to my letter to you dated XXX, in regard to your Letter Before Claim served by your company on XXX, and to subsequent correspondence.
    Set out below is my formal response as required by the pre- action protocol for Debt Claims, dated 1 October 2017.
    Please be advised of the following:
    1. Pre-action protocol Section 4 – find completed Reply Form contained in Appendix A, enclosed with this letter.

    2. The contact address to be used in any future correspondence related to this matter is, as previously advised:

    XXX

    No other address should be used.

    3. Pre-action protocol Section 3 – please provide the following information:
    3.1 (a):
    (i) The amount of the debt. This has been previously stated as £XXX.
    (ii) Confirm whether interest or other charges are continuing.
    (iii) Debt arising from an oral agreement. Confirm this is not the case.
    (iv) Debt arising from a written agreement. Confirm this is the case. Confirm the date of the agreement, the parties to it, and provide a copy of the agreement.
    (v) Debt assigned. Confirm this is not the case.
    (vi) Pre-Action Protocol Statement is not applicable.
    (vii) Pre-Action Protocol Statement is not applicable.
    (viii) The completed reply form will be sent to Gladstones Solicitors registered office.
    (b):
    (i) Provide an up-to-date statement of account for the debt, including details of any interest and administrative or other charges added.
    (ii) Pre-Action Protocol statement is not applicable as no statement of account has been issued to date.
    (iii) The Letter Before Claim does not state the amount of interest incurred and any administrative or other charges imposed since the debt was incurred.
    (c):
    The Letter Before Claim does not include a copy of the Information Sheet and Reply Form, as per Annex 1 of the protocol.
    (d):
    The Letter Before Claim does not include a Financial Statement.

    3.2 Not used.

    3.3 The contact address to be used in any future correspondence related to this matter is, as previously advised:

    XXX

    No other address should be used.

    4. Response by the Debtor is enclosed in Appendix 1 of this letter, and information requested is identified within this letter.

    5. Disclosure of Documents.

    5.1 Please provide the following information/documents:

    (i) Who is the party that contracted with your company for the provision of their services? Provide their contact details.
    (ii) What is the full legal identity of the landowner?
    (iii) As your client is not the landowner please provide a contemporaneous and unredacted copy of their contract with the landholder that demonstrate that they have the authority to both issue parking charges and litigate in their own name.
    (iv) Provide a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 “establishing yourself as the creditor”.
    (v) Is your charge based on damages for breach of contract? Answer yes or no. Presently it is understood that the charge is based on damages for breach, however confirmation is requested.
    (vi) In the event that the claim is for a contractual breach, confirm what is the date of the agreement? Provide names of the parties to it and provide a copy of that contract.
    (vii) If the charge is based on damages for breach of contract please provide your justification of this sum.
    (viii) Is your charge based on a contractually agreed sum for the provision of parking? Answer yes or no.
    (ix) If the charge is based on a contractually agreed sum for the provision of parking please provide a valid VAT invoice for this 'service'.
    (x) Is the claim for trespass? If so, provide details.
    (xi) Please provide a copy of the signs that purportedly were on site which your client contend formed a contract with the driver on that occasion.
    (xii) Provide details of the signs displayed (size of sign, size of font, height at which displayed).
    (xiii) Provide a plan showing where any signs were displayed.
    (xiv) Provide details of the original charge, and detail any interest and administrative or other charges added.

    6. Alternative Dispute Resolution.

    You should advise your client that the offer of an alternative to legal proceedings, namely the utilisation of the services of a completely independent ADR (Alternative Dispute Resolution) service suited to parking charges, and will be given full consideration. This does not include the IAS appeal service - which lacks any transparency and possibly any independence from the IPC - unlike the alternative offered by the British Parking Association, POPLA, which is transparent and has been shown to be independent.

    7. (Responses to pertinent items in Gladstones’ correspondence to be addressed here, e.g Beavis case, Elliot v Loake case)

    8. (Bring Gladstones’ attention to recent similar cases where similar fluttering ticket claims have been dismissed from court to be referenced here (thanks claxtome).

    9. (Advise Gladstones that costs incurred in dealing with this vexatious claim will be sought by the Debtor – all legitimate with receipts – to be included here)

    10. Refer to Appendix 1 – Completed Reply Form to be included.

    11. Refer to appendix 2 – Letter to Client including proof of valid ticket. (Note: Letter is Marked “Without Prejudice”, so will not be admissible in court, but the NTK and ticket will be admissable.)
    I take this opportunity to remind you that your company must comply with all steps in the Pre-Action Protocol before starting court proceedings. I also refer you to Practice Direction – Pre-Action Conduct and Protocols (paragraphs 13 to 16) on non-compliance and sanctions.

    Yours faithfully,
    • claxtome
    • By claxtome 25th Jan 18, 5:54 AM
    • 613 Posts
    • 730 Thanks
    claxtome
    Looks very thorough
    • nochargenotice
    • By nochargenotice 15th Mar 18, 8:24 PM
    • 36 Posts
    • 22 Thanks
    nochargenotice
    No response...
    Hi All,

    Just an update. My response was posted some weeks ago, and I have had no response back.

    Will be back if I haer anything.

    Thanks.
    • nochargenotice
    • By nochargenotice 11th Apr 18, 8:50 PM
    • 36 Posts
    • 22 Thanks
    nochargenotice
    Latest letter
    Hi All,

    I have just received another letter from the "legal" firm. It contains as much information as their previous correspondence (very little). I will update again as and when this progresses.
    • Coupon-mad
    • By Coupon-mad 14th Apr 18, 2:09 AM
    • 61,752 Posts
    • 74,661 Thanks
    Coupon-mad
    You will be pleased to see this one was discontinued, even after a claim:

    http://forums.moneysavingexpert.com/showthread.php?t=5758592

    HTH
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • northernt01
    • By northernt01 14th Apr 18, 11:42 PM
    • 28 Posts
    • 11 Thanks
    northernt01
    As was my case against ES Parking, two days before the hearing!
    • Galaxyulz
    • By Galaxyulz 16th Apr 18, 3:25 PM
    • 14 Posts
    • 0 Thanks
    Galaxyulz
    How do i start a new thread. I am in a similar situation
    • KeithP
    • By KeithP 16th Apr 18, 3:39 PM
    • 9,306 Posts
    • 9,584 Thanks
    KeithP
    How do i start a new thread. I am in a similar situation
    Originally posted by Galaxyulz
    Use a web browser, rather than a phone app, and you will see a New Thread button towards the top left of the thread index page.

    Did you not get that guidance when signing up to the MSE forums on Friday?
    .
    • nochargenotice
    • By nochargenotice 13th Jun 18, 8:13 PM
    • 36 Posts
    • 22 Thanks
    nochargenotice
    Court papers arrived
    Hi,

    Court papers have arrived. I will follow the guidance on responding as per the newbies thread. Please look out for the draft defence which I will post. Thanks all so far for your help.
    • nochargenotice
    • By nochargenotice 19th Jun 18, 10:12 PM
    • 36 Posts
    • 22 Thanks
    nochargenotice
    Court defence - fluttering ticket
    Hi All,

    I would welcome any feedback on the below. Its similar to others that I've researched.

    Specfics I also seek your input on:
    1. Im not sure about section 8.2 of the below.
    2. Should I email or post? There is conflicting guidance I have seen on here.


    Many thanks in advance.


    In the County Court
    Claim Number:
    Between
    xxxx (Claimant)
    and
    xxxx (Defendant)


    Defence Statement

    Preliminary Matters
    1. The Claimant has not complied with its obligations set out in the Practice Direction !!!8211; Pre-Action Conduct and Protocols. This prevents the Defendant understanding the claim and filing a full defence, The Claimant has confirmed the claim is for breach of contract however the Claimant has not explained what it claims the terms of that contract were or how it was entered into. No copy of the alleged contract has been provided to the Defendant.

    1.1 The Particulars of Claim breach the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached and breach 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 explanation; the Claimant thus fails to establish a cause of action which would enable the Defendant to prepare a specific defence; they 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, with no due diligence. Research indicated they are the subject of an active investigation by the Solicitors Regulation Authority.

    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.

    1.5 In D3GF4P9D Private Parking Solutions London -v- Mrs A, before DJ Hammond. DJ Hammond dismissed the claim. The whole case turned on the fact that a ticket had been purchased, and therefore no further arguments were considered.

    1.5 There are other similar examples which could be produced.

    2. The Defendant acknowledged receipt of the postal Parking Charge Notice on the DD/MM/YYYY. The letter included a copy of the ticket displayed on the day providing the Claimant with clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and conditions ("T&C") - as far as they were understood.

    2.1 This was an opportunity for the Claimant to act reasonably and cancel the charge.

    2.2 Not only was the charge was not cancelled but the Claimants response in a letter dated DD/MM/YYYY rejected the appeal, note that no appeal was made, and did not respond to the Defendants requests for additional information or the Defendants request to utilise an independent Alternative Dispute Resolution (ADR) service.

    2.3 The above constitutes a direct breach of Practice Direction - Pre-Action Conduct and Protocols; specifically - paragraph 3 (Objectives), 6(a) and (c) (Steps before issuing a claim) and 8 (Settlement and ADR). As such the court's attention is drawn to the sanctions set out in paragraphs 13 - 16.

    2.4 The Claimant's conduct 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 in the Beavis Case.

    3. The Defendant requests the court strike out the claim for want of a cause of action and disregard of pre-court protocol.

    3.1 Alternatively, the Defendant asks that court makes an order requiring the Claimant to file compliant Particulars, to include at least the following;
    a) Confirm explicitly the claim is for breach of contract and not for trespass 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 entered into and how (e.g. copies of signage, plan showing where signs were displayed, height at which signs were displayed)
    c) Whether the Claimant is acting as Agent or Principal, together with documents they rely on in having standing to bring this claim
    d) If charges over and above the initial charge are being claimed, the basis on which this is being claimed and calculated
    e) The basis on which interest charges are being claimed
    3.2 Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

    Background
    4.The Defendant is the authorised registered keeper in question at the time of the alleged incident.

    The Defendant denies liability for the entirety of the claim for the following reasons:

    5. If the claim is brought for breach of contract, the Defendant paid and displayed a ticket so all details could be seen, and was in place the right way up when the car was locked and left parked. The Defendant has no knowledge of the point at which the ticket flipped over or why, but made all reasonable endeavours, and complied by conduct.

    5.1 The Defendant cannot be responsible for the possibility that:
    a) A gust of wind may have later flipped the flimsy paper over, despite the windows & doors being locked.
    b) The employee of the Claimant may have caused the ticket to flip over, 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, when squeezing between the small bays to get to their own vehicle.

    5.2 None of the above scenarios are within a driver's control (the Defendant 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.

    5.3 Notwithstanding the above, the flimsiness of the ticket certainly played its part, and that is within the control of the Claimant, who must be well aware of the problem, which has become known as ''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 failed to address this issue (e.g. by adding sticky backing to the ticket, allowing it to be fixed in place).

    5.4 The Court is invited to consider the fairness of the position in this case, giving due consideration to the flimsiness of the piece of paper provided, which appears to cause significant imbalance in the rights of a consumer, to their detriment, and the Defendant relies on Section 62 of the Consumer Rights Act.

    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 any uncertainty must be resolved in favour of the consumer.

    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 require the ticket to be displayed in a prescribed manner (eg face up), then the terms should have stated this clearly and unequivocally.

    5.7 The Claimant does not dispute that the Defendant purchased a ticket, that it gave him a licence to park for the entire day and that it was displayed on the dashboard at all times.

    5.8 The Claimant has already demonstrated to the Defendant that the rear of the ticket had on it a serial number. The purpose of the serial number must have been so that the Claimant could trace the details of pay and display ticket and must indicate that the Claimant accepted the possibility that the ticket could flip over, unknown to the driver.

    Limited contract
    6. The signage on this site is inadequate to form a contract to pay £100 or any sum at all. It is barely legible, making it difficult to read and it is not believed that such terms were proclaimed with the tariffs at the machine. Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which the Claimant is a member), clearly obliges the Claimant to display legible signs in appropriate locations.

    Locus standi
    7. The Claimant has failed to establish its 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.

    7.1 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
    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 The Claimant is under a duty to mitigate its loss. It failed to do so by ignoring the serial number on the rear of the ticket which would have enabled it to establish that the Defendant had paid for a full day's parking.

    8.2 £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. Any term allowing for the Claimant to pursue such additional charges must be void for uncertainty. In any event, such charges must be covered by the addition of the discounted element of the charge after a driver has failed to pay within 14 days (£40).

    8.3 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 that in that case there was a commercial justification as it was free car park and the Claimant 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 earned from the purchase of tickets for an agreed period of time.

    8.4 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.

    8.5 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". The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

    8.6 The Defendant denies that the Claimant is entitled to any interest whatsoever

    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.




    (Name) (Signature) (Date)
    Last edited by nochargenotice; 19-06-2018 at 10:22 PM. Reason: Spelling errors, commas re-instated
    • KeithP
    • By KeithP 19th Jun 18, 10:16 PM
    • 9,306 Posts
    • 9,584 Thanks
    KeithP
    Have you done the Acknowledgement of Service?


    When ready, your Defence should be filed via email as described here:

    Once you are satisfied with the content -
    1) print your Defence
    2) sign it
    3) scan the signed document back in and save it as a pdf.
    4) send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
    5) 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'.
    .
    • nochargenotice
    • By nochargenotice 19th Jun 18, 10:25 PM
    • 36 Posts
    • 22 Thanks
    nochargenotice
    Have you done the Acknowledgement of Service?

    Originally posted by KeithP
    Thanks KeithP, yes AoS is filed.
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