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  • FIRST POST
    • meagainin
    • By meagainin 15th Sep 17, 2:41 PM
    • 57Posts
    • 36Thanks
    meagainin
    ES Parking Enforcment Ltd Ticket face down charge notice
    • #1
    • 15th Sep 17, 2:41 PM
    ES Parking Enforcment Ltd Ticket face down charge notice 15th Sep 17 at 2:41 PM
    The driver use a car park where you have to input your car reg to get a ticket which you then display in your window.

    I've recently received a charge notice because the a valid pay and display ticket was not displayed..
    EDIT Photo's shown when I was trying to appeal the decision show a number of tickets on my dashboard, most the right way up with one flipped, which isn't the ticket in question. Looks like the ticket for the day had been dislodged from the dashboard at some point.

    The letter states that the reason for issue is: Ticket face down -Did not pay and display a pre paid voucher or place it on view.

    The driver has still got the pay and display ticket which shows they'd paid the valid fee for the time the charge notice relates to. I've never had a parking charge notice before and I'm not sure what to do next. Am I liable for this charge? Is there any point appealing?

    ES Parking are members of BPA according to their letter.

    Link to Claimant's witness statement and evidence
    https://www.dropbox.com/s/wugtxqy8wjpz46w/redacted1.pdf?dl=0
    Last edited by meagainin; 04-05-2018 at 7:52 AM. Reason: Additional info
Page 3
    • meagainin
    • By meagainin 25th Jan 18, 5:07 PM
    • 57 Posts
    • 36 Thanks
    meagainin
    Update
    Here's my latest stab, is that any better? I think I've included the correct generic sections Coupon Mad very kindly signposted me to.

    Although I didn't make an appeal, is it still worth pointing out the interconnectedness of IPC/IAS/Gladstones?

    Introduction
    1. I am XXXX, the Defendant in this matter.
    2. This is my statement of truth and my defence.
    3. The claim states "parking charges and indemnity costs if applicable" which gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. This information has been formally requested but not supplied by the claimant’s representative (Gladstones Solicitors). Because of this, I have had to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied me a fair chance to defend this claim in an informed way.
    Therefore, as an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.


    Facts supporting the defence

    The Defendant admits that the car was parked at the location indicated, but denies that any sum is owed by way of a parking charge because a pay & display ticket (PDT) was purchased to cover the parking time.

    1.1. No relevant contract or relevant obligation was breached. The PDT was displayed when parking.

    1.2. The Defendant was surprised to to receive a Notice to Keeper and the Defendant denies liability for the entirety of the claim for the following reasons:

    3. If the claim is brought for breach of contract, the driver paid and displayed a ticket so all details could be seen. The driver checked that this was in place when the car was locked and left parked.!

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

    3.2 The Defendant cannot be responsible for the possibility that:
    a) A gust of wind may have later flipped or dislodged the flimsy paper, 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.

    3.3 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.

    3.4 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).

    3.5 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.

    3.6 In C8GF30W7 Link Parking v Mr H (14/11/2016 Port Talbot) in which a claim was dismissed due to a ticket that had turned upside down. The judge dismissed the claim and ruled that it was the responsibility of the parking company to provide sticky backed tickets and that he had already thrown out 6 -10 of these type of case.

    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.

    3.7 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.!

    3.8 The Claimant does not dispute that the driver purchased a ticket nor that it gave them a licence to park for the entire day.

    3.9 There are other similar examples which could be produced.

    4. Once the Notice to Keeper was received; the Defendant endeavoured to appeal the postal Parking Charge Notice online via the Claimant's website with a copy of the ticket displayed on the day, however the website rejected the appeal due to the size of the photograph, even though the Defendant resized the photograph more than once.
    When then Defendant tried again on 2 October 2017 the claimant's website would not allow the appeal to be submitted and stated that the notice was more than 21 days old and therefore no longer subject to appeal. This was incorrect and in contravention of the Claimant's Accredited Operator Code of Practice which states in Part B, Section 6 that Operators should 'Allow a minimum of 21 days from imposition for the motorist to lodge an appeal with you and make representations' . International Parking Community Code of Practice - see Schedule 4.

    4.1. The Claimant sent a Letter Before Claim to the Defendant on 9 November 2017. In a response on 3 December 2017, the Defendant provided a copy of the ticket displayed on the day providing the Claimant with clear evidence that the driver had acted in good faith and made all reasonable endeavours to comply with the terms and condition (“T&C”) - as far as they were understood.

    4.2 Provision of a copy of the ticket displayed on the day in the Defendant's response gave the Claimant a clear opportunity to act reasonably and cancel the charge. The Claimant failed to respond or acknowledge the Defendant's reply to the Letter Before Claim.

    4.3 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.

    4.4 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.

    Unfairness - no regard for the Trader's duty for 'Fair Dealing' and Misleading Trading Practices
    5. Trade Body Codes of Practice are 'effectively binding' according to the Supreme Court in the!Beavis!case.!

    5.1. Further, the Consumer Protection from Unfair Trading Regulations identifies at section 5 'Misleading Actions': (3) A commercial practice satisfies the conditions of this paragraph if - (b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—
    (i) the trader indicates in a commercial practice that he is bound by that code of conduct, and
    (ii) the commitment is firm and capable of being verified and is not aspirational.

    5.2. The Court's attention is drawn to the “Red Hand Rule”, as set out in the leading judgment in!J Spurling v Bradshaw![1956] EWCA Civ 3, where Denning MR stated:!“The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient”.!

    5.3. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that must be used to form contracts. It says:!''It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge.''!

    5.4. In the Beavis case, the Supreme Court Judges reiterated the requirement for fair and open dealing, at paragraph 205:!“The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

    5.5. Courts must now consider the fairness of a term, where it is not 'prominent and transparent'. Unfair terms here include the penalty fine itself, charges hidden in small print, lack of any fair grace period for the driver to seek out, read decide whether to accept any advertised parking contract, misleading and predatory conduct, added costs not specified prominently in the alleged contract, disproportionate default charges, non-observance of a Code of Practice. Such conduct and terms breach Part 2 'Unfair Contract Terms' of the Consumer Rights Act 2015 (the CRA) which was enacted after the!Beavis!case final hearing, and remains untested in the context of unfair parking penalty charges.!

    5.5.1. The Court's attention is drawn to the CRA at SCHEDULE 2, a non-exhaustive list of!'Consumer contract terms which may be regarded as unfair'!which include clear references to conduct that is on all fours with that of this Claimant, and their solicitors.

    5.5.2. The CRA requires that key terms of a contract,!including price, must be assessed for fairness by a court, where those terms are not both 'prominent and transparent' (which the Defendant avers they are not).!
    The CRA, at para 71, sets out the duty of court to consider fairness of a consumer contract term:!''(2) The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it''.!



    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 driver 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.

    9. 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.

    9.1. 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.


    This Claim is artificially inflated, but is embarrassing for scarce Particulars
    10. It is denied that the Claimant has any entitlement to the sums sought, and it is noted that this Claim has inflated the 'charges' in a typically routine attempt at double recovery of a sum which bears no relation to the sum on any sign or parking charge notice.!

    11. No indemnity costs or damages have been incurred, nor were any debt collection 'fees' paid by this Claimant, and it is averred that the sum claimed is invented out of thin air as part of the Claimant's solicitors' robo-claim model.!

    12 The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence and no scrutiny of details. HMCS have identified thousands of similar poorly produced claims, and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.!

    13. The Particulars of Claim lack specificity and are embarrassing. The Court is respectfully invited to strike out the claim, for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a parking claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and!''providing no facts that could give rise to any apparent claim in law''.!

    14. Should the Claim not be struck out by the Court, as an alternative when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange). This is because it is expected that the Claimant/Gladstones will use the witness statement to finally provide the sort of detail which should have been disclosed much earlier in the missing Particulars of Claim. The Defendant should have the opportunity to consider the full particulars/evidence, prior to serving evidence and witness statements in support of this Defence.

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


    Signature


    Date
    Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
    • meagainin
    • By meagainin 26th Jan 18, 2:25 PM
    • 57 Posts
    • 36 Thanks
    meagainin
    Thanks for the reply Claxtome. I was thinking the same and wasn't sure even to mention it but I didn't want to miss out something that mightturn out to be pertinent.
    • Coupon-mad
    • By Coupon-mad 27th Jan 18, 12:33 AM
    • 61,405 Posts
    • 74,311 Thanks
    Coupon-mad
    I would remove #8 entirely.
    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.

    • claxtome
    • By claxtome 30th Jan 18, 5:35 AM
    • 613 Posts
    • 730 Thanks
    claxtome
    Although I didn't make an appeal, is it still worth pointing out the interconnectedness of IPC/IAS/Gladstones?
    I would say you have plenty of defence arguments without this.
    • meagainin
    • By meagainin 30th Jan 18, 7:07 AM
    • 57 Posts
    • 36 Thanks
    meagainin
    Final draft?
    Any advice/crtitique very much appreciated.

    Introduction
    1. I am XXXX, the Defendant in this matter.
    2. This is my statement of truth and my defence.
    3. The claim states "parking charges and indemnity costs if applicable" which gives no indication of on what basis the claim is brought, for example, whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. This information has been formally requested but not supplied by the claimant’s representative (Gladstones Solicitors). Because of this, I have had to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied me a fair chance to defend this claim in an informed way.
    Therefore, as an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.


    Facts supporting the defence

    The Defendant admits that the car was parked at the location indicated, but denies that any sum is owed by way of a parking charge because a pay & display ticket (PDT) was purchased to cover the parking time.

    1.1. No relevant contract or relevant obligation was breached. The PDT was displayed when parking.

    1.2. The Defendant was surprised to to receive a Notice to Keeper and the Defendant denies liability for the entirety of the claim for the following reasons:

    3. If the claim is brought for breach of contract, the driver paid and displayed a ticket so all details could be seen. The driver checked that this was in place when the car was locked and left parked.!

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

    3.2 The Defendant cannot be responsible for the possibility that:
    a) A gust of wind may have later flipped or dislodged the flimsy paper, 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.

    3.3 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.

    3.4 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).

    3.5 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.

    3.6 In C8GF30W7 Link Parking v Mr H (14/11/2016 Port Talbot) in which a claim was dismissed due to a ticket that had turned upside down. The judge dismissed the claim and ruled that it was the responsibility of the parking company to provide sticky backed tickets and that he had already thrown out 6 -10 of these type of case.

    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.

    3.7 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.!

    3.8 The Claimant does not dispute that the driver purchased a ticket nor that it gave them a licence to park for the entire day.

    3.9 There are other similar examples which could be produced.

    4. Once the Notice to Keeper was received; the Defendant endeavoured to appeal the postal Parking Charge Notice online via the Claimant's website with a copy of the ticket displayed on the day, however the website rejected the appeal due to the size of the photograph, even though the Defendant resized the photograph more than once.
    When then Defendant tried again on 2 October 2017 the claimant's website would not allow the appeal to be submitted and stated that the notice was more than 21 days old and therefore no longer subject to appeal. This was incorrect and in contravention of the Claimant's Accredited Operator Code of Practice which states in Part B, Section 6 that Operators should 'Allow a minimum of 21 days from imposition for the motorist to lodge an appeal with you and make representations' . International Parking Community Code of Practice - see Schedule 4.

    4.1. The Claimant sent a Letter Before Claim to the Defendant on 9 November 2017. In a response on 3 December 2017, the Defendant provided a copy of the ticket displayed on the day providing the Claimant with clear evidence that the driver had acted in good faith and made all reasonable endeavours to comply with the terms and condition (“T&C”) - as far as they were understood.

    4.2 Provision of a copy of the ticket displayed on the day in the Defendant's response gave the Claimant a clear opportunity to act reasonably and cancel the charge. The Claimant failed to respond or acknowledge the Defendant's reply to the Letter Before Claim.

    4.3 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.

    4.4 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.

    Unfairness - no regard for the Trader's duty for 'Fair Dealing' and Misleading Trading Practices
    5. Trade Body Codes of Practice are 'effectively binding' according to the Supreme Court in the!Beavis!case.!

    5.1. Further, the Consumer Protection from Unfair Trading Regulations identifies at section 5 'Misleading Actions': (3) A commercial practice satisfies the conditions of this paragraph if - (b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—
    (i) the trader indicates in a commercial practice that he is bound by that code of conduct, and
    (ii) the commitment is firm and capable of being verified and is not aspirational.

    5.2. The Court's attention is drawn to the “Red Hand Rule”, as set out in the leading judgment in!J Spurling v Bradshaw![1956] EWCA Civ 3, where Denning MR stated:!“The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses would need to be printed in red ink with a red hand pointing to it before the notice could be held to be sufficient”.!

    5.3. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that must be used to form contracts. It says:!''It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge.''!

    5.4. In the Beavis case, the Supreme Court Judges reiterated the requirement for fair and open dealing, at paragraph 205:!“The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

    5.5. Courts must now consider the fairness of a term, where it is not 'prominent and transparent'. Unfair terms here include the penalty fine itself, charges hidden in small print, lack of any fair grace period for the driver to seek out, read decide whether to accept any advertised parking contract, misleading and predatory conduct, added costs not specified prominently in the alleged contract, disproportionate default charges, non-observance of a Code of Practice. Such conduct and terms breach Part 2 'Unfair Contract Terms' of the Consumer Rights Act 2015 (the CRA) which was enacted after the!Beavis!case final hearing, and remains untested in the context of unfair parking penalty charges.!

    5.5.1. The Court's attention is drawn to the CRA at SCHEDULE 2, a non-exhaustive list of!'Consumer contract terms which may be regarded as unfair'!which include clear references to conduct that is on all fours with that of this Claimant, and their solicitors.

    5.5.2. The CRA requires that key terms of a contract,!including price, must be assessed for fairness by a court, where those terms are not both 'prominent and transparent' (which the Defendant avers they are not).!
    The CRA, at para 71, sets out the duty of court to consider fairness of a consumer contract term:!''(2) The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it''.!



    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 driver had paid for a licence to park.

    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 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.


    This Claim is artificially inflated, but is embarrassing for scarce Particulars
    9. It is denied that the Claimant has any entitlement to the sums sought, and it is noted that this Claim has inflated the 'charges' in a typically routine attempt at double recovery of a sum which bears no relation to the sum on any sign or parking charge notice.!

    10. No indemnity costs or damages have been incurred, nor were any debt collection 'fees' paid by this Claimant, and it is averred that the sum claimed is invented out of thin air as part of the Claimant's solicitors' robo-claim model.!

    11 The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence and no scrutiny of details. HMCS have identified thousands of similar poorly produced claims, and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.!

    12. The Particulars of Claim lack specificity and are embarrassing. The Court is respectfully invited to strike out the claim, for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a parking claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and!''providing no facts that could give rise to any apparent claim in law''.!

    13. Should the Claim not be struck out by the Court, as an alternative when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange). This is because it is expected that the Claimant/Gladstones will use the witness statement to finally provide the sort of detail which should have been disclosed much earlier in the missing Particulars of Claim. The Defendant should have the opportunity to consider the full particulars/evidence, prior to serving evidence and witness statements in support of this Defence.

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


    Signature


    Date
    Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
    • meagainin
    • By meagainin 30th Jan 18, 2:07 PM
    • 57 Posts
    • 36 Thanks
    meagainin
    Bump for any further advice.
    • Coupon-mad
    • By Coupon-mad 30th Jan 18, 11:54 PM
    • 61,405 Posts
    • 74,311 Thanks
    Coupon-mad
    Looks good to me, a little long but it covers the issues surrounding the flimsy fluttering ticket, and the CRA about unfairness, so it's all on point IMHO for such a case.
    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.

    • claxtome
    • By claxtome 31st Jan 18, 8:25 AM
    • 613 Posts
    • 730 Thanks
    claxtome
    It appears, as had a PM from the OP, this is the same car park as mine for the flipped case.
    In my case I checked and found that the advertising consent for signage had run out.

    For those who don't know you can check this on the planning section of the council website and it doesn't cost anything. Can email planning if you want confirmation (effectively a Subject Access Request (SAR) request that they have to respond to).

    Therefore if you want you could include the following, like I did, and remember to follow it up at WS stage like I did. It is not your main argument but all will help.

    So up to you if to include your paragraphs below to an already long defence (just like mine was):

    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.
    • claxtome
    • By claxtome 16th Mar 18, 5:17 AM
    • 613 Posts
    • 730 Thanks
    claxtome
    How's it going with your case?
    Have they given you a court date?
    • meagainin
    • By meagainin 28th Mar 18, 8:41 PM
    • 57 Posts
    • 36 Thanks
    meagainin
    I've been allocated to a court about 13 miles away from the court I wanted but I've not got a date yet.

    Read about your great news today, congrats!
    • claxtome
    • By claxtome 28th Mar 18, 8:48 PM
    • 613 Posts
    • 730 Thanks
    claxtome
    I've been allocated to a court about 13 miles away from the court I wanted but I've not got a date yet.
    Typical about venue.
    Hopefully not too inconvenient.
    Last edited by claxtome; 28-03-2018 at 8:56 PM.
    • meagainin
    • By meagainin 10th Apr 18, 8:04 PM
    • 57 Posts
    • 36 Thanks
    meagainin
    Got my court date and just wondering if this direction by the judge is normal?

    https://www.dropbox.com/sh/eke2k25z61idcni/AADBkIncEOHtGXNIcYVeDNPoa?dl=0
    • Umkomaas
    • By Umkomaas 10th Apr 18, 8:53 PM
    • 19,383 Posts
    • 30,610 Thanks
    Umkomaas
    Got my court date and just wondering if this direction by the judge is normal?

    https://www.dropbox.com/sh/eke2k25z61idcni/AADBkIncEOHtGXNIcYVeDNPoa?dl=0
    Originally posted by meagainin
    I get really dizzy when I have to stand on my head, then lean sideways to view uploads.

    Try the 'Rotate' button.
    The fact that I have commented on your thread does not mean I have become your personal adviser. A long list of subsequent questions addressed for my personal attention is unlikely to receive a reply.
    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.
    • meagainin
    • By meagainin 10th Apr 18, 9:03 PM
    • 57 Posts
    • 36 Thanks
    meagainin
    Sorry! It's showing the right way up for me.
    Will try again.
    • Castle
    • By Castle 10th Apr 18, 9:06 PM
    • 1,888 Posts
    • 2,556 Thanks
    Castle
    Got my court date and just wondering if this direction by the judge is normal?

    https://www.dropbox.com/sh/eke2k25z61idcni/AADBkIncEOHtGXNIcYVeDNPoa?dl=0
    Originally posted by meagainin
    Looks like the judge is asking for a better POC from ES Parking, including evidence of the basis to bring the claim.
    • meagainin
    • By meagainin 10th Apr 18, 9:08 PM
    • 57 Posts
    • 36 Thanks
    meagainin
    I'm an idiot, was looking in the wrong place.
    Should be the right way around now.
    • Coupon-mad
    • By Coupon-mad 10th Apr 18, 9:36 PM
    • 61,405 Posts
    • 74,311 Thanks
    Coupon-mad
    What does point #1 and point #2 say?

    Which court?
    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.

    • KeithP
    • By KeithP 10th Apr 18, 9:55 PM
    • 9,190 Posts
    • 9,353 Thanks
    KeithP
    St Helens County Court.
    .
    • IamEmanresu
    • By IamEmanresu 11th Apr 18, 5:26 AM
    • 3,261 Posts
    • 5,461 Thanks
    IamEmanresu
    Looks standard to me. There is the instruction to pay, the date of the hearing and should be an instruction to exchange (witness statements) within 14 days of the hearing. All normal.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
    • meagainin
    • By meagainin 11th Apr 18, 7:26 AM
    • 57 Posts
    • 36 Thanks
    meagainin
    Points 1 & 2 relate to the court date and the date the statements are required by.

    It's St Helens court in Merseyside.
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