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  • FIRST POST
    • billinghamn
    • By billinghamn 25th Jun 16, 6:11 AM
    • 34Posts
    • 8Thanks
    billinghamn
    ES Parking Enforcement
    • #1
    • 25th Jun 16, 6:11 AM
    ES Parking Enforcement 25th Jun 16 at 6:11 AM
    I have just received a letter from Wright Hassall on behalf of ZZPS acting on behalf of their client ES Parking Enforcement for a pay and display "parking event". The ticket blew upside down when the car door was shut!

    I have had a few letters previously - some I have responded to acting as Registered Owner and have never declared who the driver was at the time of the parking infraction.

    This letter includes the phrase "...may result in us recommending to our client that we pass this matter over to our Litigation Department", followed by threats as to what a CCJ might impact.

    Am I correct in thinking this is another debt collection letter and therefore I should ignore at this point? The only letter I should formally respond to now is a letter before action?
Page 2
    • billinghamn
    • By billinghamn 10th Nov 17, 2:30 PM
    • 34 Posts
    • 8 Thanks
    billinghamn
    Yes - was thinking along similar lines. Firstly restate the things from my first letter, then include the additional fluttering ticket case evidence that you have provided a link to. Let's see what they say to that.

    Also worth highlighting that this time they included pictures taken at the time of the alleged offense. They don't have a clear view of the dashboard (e.g. harsh reflections obscuring parts of the dash - strong sunlight). In my mind that questions whether you can conclude, without reasonable doubt, that there is no ticket on the dash.
    • claxtome
    • By claxtome 12th Jan 18, 5:02 AM
    • 559 Posts
    • 651 Thanks
    claxtome
    It has been about 2 months since your last post.
    Did you get anything back from your LBC response?
    • billinghamn
    • By billinghamn 12th Jan 18, 7:30 AM
    • 34 Posts
    • 8 Thanks
    billinghamn
    This case has now progressed further. We have exchanged further letters, and now I have received a moneyclaim form for county court. Will be strongly defending the case based on the fluttering ticket evidence.

    Any advice/support would be appreciated, especially in how best to word my defence.
    • Lamilad
    • By Lamilad 12th Jan 18, 7:42 AM
    • 1,348 Posts
    • 2,695 Thanks
    Lamilad
    Any advice/support would be appreciated, especially in how best to word my defence.
    Claxtome is also dealing with a fluttering ticket case and has loads of useful information and comments on his thread. Click on his username to view his profile then click on "threads"
    • nosferatu1001
    • By nosferatu1001 12th Jan 18, 8:31 AM
    • 2,264 Posts
    • 2,654 Thanks
    nosferatu1001
    Also read post 2 of the newbiues thread, to make sure you have acknowledged the claim to give you the full 33 days from date of issue for the court to RECEIVE your defence.
    • billinghamn
    • By billinghamn 13th Jan 18, 4:41 AM
    • 34 Posts
    • 8 Thanks
    billinghamn
    Acknowledged claim online. Need to work on my defence next!
    • billinghamn
    • By billinghamn 13th Jan 18, 6:40 AM
    • 34 Posts
    • 8 Thanks
    billinghamn
    I could do with some advice!

    I need to act on another person's behalf in this case. The other person is the defendant and my objective is to represent that person in court, ideally with that person not needing to attend court.

    I have acknowledged the claim on behalf of the other person and noted myself as "Litigation Friend".

    Is that enough, or do I need a Power of Attorney or something?
    • Umkomaas
    • By Umkomaas 13th Jan 18, 6:47 AM
    • 17,287 Posts
    • 27,230 Thanks
    Umkomaas
    The other person is the defendant and my objective is to represent that person in court, ideally with that person not needing to attend court.
    The defendant has to attend court, unless you/he/she want to totally avoid attendance by asking for the case to be !!!8216;heard on the papers!!!8217;, a more risky strategy.

    You should do some research on !!!8216;Lay Representative!!!8217; and !!!8216;McKenzie Friend!!!8217; to look at your other range of options.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • billinghamn
    • By billinghamn 13th Jan 18, 7:10 AM
    • 34 Posts
    • 8 Thanks
    billinghamn
    The defendant has to attend court, unless you/he/she want to totally avoid attendance by asking for the case to be ‘heard on the papers’, a more risky strategy.

    You should do some research on ‘Lay Representative’ and ‘McKenzie Friend’ to look at your other range of options.
    Originally posted by Umkomaas
    Thanks for this. I have done a bit of research on this already.

    A "McKenzie Friend" has no right to act on behalf of a litigant in person, so that's probably not worthwhile pursuing for my purposes.

    "Lay Representative" as defined in MCOL appears to allow someone else to represent the claimant in court, but the claimant needs to also attend. I assume that equally applies to the defendant!

    There's also a note "Your lay representative cannot go to the hearing without you, unless you have permission from the court".

    So has anyone any experience of requesting permission from the court?
    • The Deep
    • By The Deep 13th Jan 18, 8:39 AM
    • 9,031 Posts
    • 8,701 Thanks
    The Deep
    They should quit while they are behind.


    Have you investigated a counter claim under data protection laws or harassment, or investigated unreasonable conduct costs under CPR27.14(2)(g)? All useful sticks with which to beat a scammer.
    You never know how far you can go until you go too far.
    • Coupon-mad
    • By Coupon-mad 13th Jan 18, 4:52 PM
    • 56,149 Posts
    • 69,814 Thanks
    Coupon-mad
    I could do with some advice!

    I need to act on another person's behalf in this case. The other person is the defendant and my objective is to represent that person in court, ideally with that person not needing to attend court.

    I have acknowledged the claim on behalf of the other person and noted myself as "Litigation Friend".

    Is that enough, or do I need a Power of Attorney or something?
    Originally posted by billinghamn
    Re the alarming bit in red - Nononono. This could be distrastrous, why didn't you ask? Eeeek!!

    You CANNOT acknowledge the claim, only the Defendant can. Currently I would say the Claim remains unacknowledged!

    NONONO.

    All of this needs to be done in the Defendant's name.

    So now you will have to also POST an acknowledgement (signed by the RIGHT PERSON) or phone the CCBC on Monday (with the Defendant next to you, as they are probably the only person who the CCBC will speak to) and put this initial error right.

    Being a Lay Rep (the person who speaks for the Defendant) is fully described all over the forum, and doesn't need your name in the frame until the hearing. It will be OK but that comes MUCH later.

    You DO NOT feature at this stage.

    Also, the Defendant will have to attend with you if a hearing takes place.

    There's also a note "Your lay representative cannot go to the hearing without you, unless you have permission from the court".

    So has anyone any experience of requesting permission from the court?
    Originally posted by billinghamn
    No, because IMHO it's simply not a good idea. Even with a lay rep family member, the Defendant ALWAYS attends in cases we help with, shows a level of honesty if nothing else, a willingness to be there as witness, something that the PPC won't do.
    Last edited by Coupon-mad; 13-01-2018 at 4:57 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • nosferatu1001
    • By nosferatu1001 13th Jan 18, 5:05 PM
    • 2,264 Posts
    • 2,654 Thanks
    nosferatu1001
    The only way you can attend without the defendant, and hope to do anything, is if you are suitably qualified

    Your3 not. So your entire idea cannot work

    Do exactly as told. You cannot act !!!8220;for !!!8220; the defendant, just help them complete THEIR forms in THEIR name at all times. They must sign the defence, witness statement etc.
    • billinghamn
    • By billinghamn 14th Jan 18, 4:29 AM
    • 34 Posts
    • 8 Thanks
    billinghamn
    No problem - I was planning on ringing CCBC on Mon anyway. Thanks for the advice,
    • billinghamn
    • By billinghamn 14th Jan 18, 2:22 PM
    • 34 Posts
    • 8 Thanks
    billinghamn
    I've prepared a first draft of defence, which will be presented in Word, double spaced etc.

    Starting off with:

    IN THE COUNTY COURT BUSINESS CENTRE
    CLAIM No: [Case No]
    BETWEEN:
    ES PARKING ENFORCEMENT LTD (Claimant)
    -and-
    [Defendant Name] (Defendant)

    The defence statement is made up of the following sections:

    Introduction

    1. [Defendant Name] is the defendant in this matter. The address for service is: [Defendant Address].

    2. This is my statement of truth and my defence.

    3. As a litigant-in-person, I seek the Court's permission to amend and supplement this defence, as may be required, upon disclosure of the claimant's case.

    4. For the avoidance of doubt, on the relevant date I was the registered keeper of a [Defendant Vehicle], registered number [Defendant Vehicle Reg].

    5. It is believed that it is a matter of common ground that the purported debt arose as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked on land at [Car Park Address] on [Date].
    Preliminary Matters

    1. The Claimant has not complied with its obligations set out in the Practice Direction – Pre-Action Conduct and Protocols. This prevents the Defendant understanding the claim and filing a full defence, because a parking charge can be for trespass or breach of contract, both of which are treated differently in law and require a different defence. If a claim in contract, 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 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 27/07/2016 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 There are other similar examples which could be produced.

    2. The Defendant replied to the PCN on [Date], requesting information in order to make an informed decision, recommended the use of a completely independent ADR service and advised the Claimant not to send debt collection letters, nor to add any costs or surcharges. The Claimant has failed to respond to these specific points.

    2.1. Following a number of exchanges in correspondence, and a gap of 18 months, the Claimant sent a Letter Before Claim to the Defendant on [Date]. In a response on [Date], the Defendant provided 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 condition (“T&C”) - as far as they were understood.

    2.2 The Claimant has had multiple opportunities to act reasonably and cancel the charge.

    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 Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the Defendant liable under the strict “keeper liability” provisions.

    3.1. Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a “relevant obligation” and “relevant contract”, fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper.

    4. 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 court makes an order requiring the Claimant to file compliant Particulars, to include at least the following:
    a) Whether the claim is 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 entered into and how (e.g. copies of signage)
    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) 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.
    Background

    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.

    5.1 The Claimant has provided photographic evidence of the Defendant’s vehicle, suggesting that it demonstrates that there was no parking ticket displayed. The Defendant disputes this. The photographic evidence does not provide a clear view of the dashboard due to reflections from bright sunlight. It is therefore not conclusive that the Defendant failed to display a parking ticket, and therefore the Claimant has no cause for action.

    5.2 If the parking ticket flipped over, the Defendant has no knowledge of the point at which this happened or why, but made all reasonable endeavours, and complied by conduct.

    5.3 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.

    5.4 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.

    5.5 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).

    5.6 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.

    5.7 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.

    5.8 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 (e.g. face up), then the terms should have stated this clearly and unequivocally.

    5.9 The Claimant does not dispute that the Defendant purchased a ticket, that it gave him a licence to park for the entire day.

    6. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car nearly 2 years later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that a registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.
    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.
    No Advertising Consent for Signage

    8. The Claimant is not entitled to rely on an illegal or immoral act in order to profit from it, pursuant to the doctrine ex dolo malo non oritur actio. In this matter, the Claimant does not have advertisement consent in relation to its parking signage on the land in question (which are classed as “advertisements” under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended). This is a criminal offence under Regulation 30 of those Regulations. Accordingly, as a matter of public policy and pursuant to the doctrine, the Claimant should not be allowed to found a cause of action on unlawful signage. The rationale for this is set out in the case of Holman v Johnson (1775) 1 Cowp 341 and was reaffirmed in RTA (Business Consultants) Ltd v Bracewell [2015] EWHC 630 (QB) (12 March 2015). The Defendant also relies on Andre Agassi v S Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507 and ParkingEye v Somerfield Stores [2012] EWCA Civ 1338.

    8.1 In addition, the Claimant is in breach of various statutory and regulatory provisions set out in the Consumer Protection from Unfair Trading Regulations 2008 (Regulation 3 – a breach of which is an offence under Regulation 5), the Consumer Rights Act 2015 (Sections 62 and 68 and Schedule 2) and the Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013 (Regulation 13). Again, the court should not lend its aid to the Claimant in founding a claim based on its unlawful and/or immoral conduct.
    Claimant is Seeking a Penalty and Inflated Costs

    9. The Claimant seeks £160 which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown the purchase of 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.

    9.2 £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).

    9.3 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.

    9.4 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.

    9.5 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 19/08/2015 in ParkingEye v Mrs S, claim number B9FC508F.

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

    10. The Defendant invites the court to strike out the claim for the above grounds.
    Then finishing off with:

    I believe the facts contained in this Defence Statement are true.


    [Defendant Signature and Name]
    I'm keen to get people's opinions about this draft. Please challenge where necessary.

    Many thanks!
    • Coupon-mad
    • By Coupon-mad 14th Jan 18, 7:29 PM
    • 56,149 Posts
    • 69,814 Thanks
    Coupon-mad
    #2 and #3 are not 'preliminary matters' and should be in the main part of the defence.

    And I wouldn't bother with #8.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • billinghamn
    • By billinghamn 15th Jan 18, 6:14 AM
    • 34 Posts
    • 8 Thanks
    billinghamn
    #2 and #3 are not 'preliminary matters' and should be in the main part of the defence.

    And I wouldn't bother with #8.
    Originally posted by Coupon-mad
    Thanks for your comments. Appreciate I haven't got my numbering right just yet!

    So in terms of #2 and #3, you refer to #2, #2.1, #2.2, #2.3 and #2.4 - all to move to the main defence section?

    In terms of #3, you refer to #3 and #3.1? Again - move all of these statements to the main defence section?

    For #8, you think I may as well remove the entire section entitled "No Advertising Consent for Signage"?

    Thanks for your support.
    • claxtome
    • By claxtome 21st Jan 18, 4:41 AM
    • 559 Posts
    • 651 Thanks
    claxtome
    I wouldn't include #8 either unless your case is like mine and they did have advertising consent for signage but has now expired.

    Also
    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
    Last edited by claxtome; 23-01-2018 at 2:34 PM.
    • billinghamn
    • By billinghamn 23rd Jan 18, 1:36 PM
    • 34 Posts
    • 8 Thanks
    billinghamn
    I wouldn't include #8 either unless your case is like mine and they did have advertising consent for signage but has now expired. ;-)

    Also
    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
    Originally posted by claxtome
    Thanks for link to additional cases - all good news!
    • claxtome
    • By claxtome 23rd Jan 18, 11:13 PM
    • 559 Posts
    • 651 Thanks
    claxtome
    Further comments about your defence:
    I was told there shouldn't be any confusion about numbering so suggest the prelim starts at #6 and continues...

    I think I was told by loadsofchildren123, a solicitor, to have similar paragraphs as your #2 and #3 in the prelim.
    This contradicts what Coupon-Mad suggested which is never recommended as is so experienced.
    This is your defence so your decision.
    Just trying to help...
    • billinghamn
    • By billinghamn 24th Jan 18, 7:12 AM
    • 34 Posts
    • 8 Thanks
    billinghamn
    Latest version of the defence statement is below. This needs to be submitted by10/02.

    Introduction
    1. [Defendant Name] is the Defendant in this matter. The address for service is: [Defendant Address].

    2. This is my statement of truth and my defence.

    3. As a litigant-in-person, I seek the Court's permission to amend and supplement this defence, as may be required, upon disclosure of the claimant's case.

    4. For the avoidance of doubt, on the relevant date I was the Registered Keeper of a [Defendant Vehicle], registered number [Defendant Vehicle Reg].

    5. It is believed that it is a matter of common ground that the purported debt arose as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked on land at [Car Park Address] on [Date].
    Preliminary Matters
    6. The Claimant has not complied with its obligations set out in the Practice Direction – Pre-Action Conduct and Protocols. This prevents the Defendant understanding the claim and filing a full defence, because a parking charge can be for trespass or breach of contract, both of which are treated differently in law and require a different defence. If a claim in contract, 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.

    6.1 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).

    6.2 The Claimant and their solicitor are known to be 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.

    6.3 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''.

    6.4 On the 27/07/2016 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.

    6.5 There are other similar examples which could be produced.

    7. The Defendant replied to the PCN on 29/02/2016, requesting information in order to make an informed decision, recommended the use of a completely independent ADR service and advised the Claimant not to send debt collection letters, nor to add any costs or surcharges. The Claimant has failed to respond to these specific points. A number of exchanges in correspondence ensued, focusing on these same points. At no point did the Claimant address the Defendant’s specific points.

    7.1. After a gap of 18 months, the Claimant sent a Letter Before Claim to the Defendant on 11/10/2017. In a response on 23/10/2017, the Defendant provided a copy of the ticket displayed on the day providing the Claimant with clear evidence that the Driver acted in good faith and made all reasonable endeavours to comply with the terms and condition (“T&C”) - as far as they were understood.

    7.2 The Claimant has had multiple opportunities to act reasonably and cancel the charge.

    7.3 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.

    7.4 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.

    8. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the Defendant liable under the strict “keeper liability” provisions.

    8.1. Schedule 4 also states that the only sum a Registered Keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a “relevant obligation” and “relevant contract”, fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper.

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

    9.1 Alternatively, the Defendant asks that court makes an order requiring the Claimant to file compliant Particulars, to include at least the following:
    a) Whether the claim is 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 entered into and how (e.g. copies of signage)
    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) If Interest charges are being claimed, the basis on which this is being claimed

    9.2 Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
    Background
    The Defendant denies liability for the entirety of the claim for the following reasons:

    10. 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.

    10.1 The Claimant has provided photographic evidence of the Defendant’s vehicle, suggesting that it demonstrates that there was no parking ticket displayed. The Defendant disputes this. The photographic evidence does not provide a clear view of the dashboard due to reflections from bright sunlight. It is therefore not conclusive that the Defendant failed to display a parking ticket, and therefore the Claimant has no cause for action.

    10.2 If the parking ticket flipped over, the Defendant has no knowledge of the point at which this happened or why, but made all reasonable endeavours, and complied by conduct.

    10.3 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.

    10.4 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.

    10.5 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).

    10.6 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.

    10.7 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.

    10.8 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 (e.g. face up), then the terms should have stated this clearly and unequivocally.

    10.9 The Claimant does not dispute that the Defendant purchased a ticket, that it gave him a licence to park for the entire day.

    11. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a Registered Keeper to be able to recall the Driver of the car nearly 2 years later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that a Registered Keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.
    Locus Standi
    12. 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.

    12.1 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
    13. The Claimant seeks £160 which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown the purchase of 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.

    13.1 £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. 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).

    13.2 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.

    13.3 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. 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.

    13.4 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”. The £50 was also struck out by DJ Sparrow on 19/08/2015 in ParkingEye v Mrs S, claim number B9FC508F.

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

    14. The Defendant invites the court to strike out the claim for the above grounds.
    Then finishing off with:
    I believe the facts contained in this Defence Statement are true.


    [Defendant Signature and Name]
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