fluttering ticket going to court

I would appreciate any comments about my draft witness statement please->

My defence that I submitted is in post #74

I, XXX, of YYY will say as follows:

1. I am the Defendant in this matter. I am an unrepresented consumer who is not experienced at attending county court. In this statement I will refer to the documents contained in exhibit marked XXX1, by page number, [STRIKE]and Claimant’s Accredited Trade Organisation (ATA) (International Parking Community) Accredited Operator Scheme Code of Practice, by section numbers[/STRIKE].

2. On the XXX May 2017 I parked in XXX Car Park, walked to the nearest pay and display machine, purchased a ticket for the day and, confirm as matter of fact, I displayed it face up on the dashboard of the car. I am careful with parking tickets to ensure they are displayed correctly after a previous event a long time ago where a ticket at the end of the day was found in the foot-well. This was a council car park in the Lake District and when I appealed with a copy of the ticket the Local Council quashed the parking fine.

3. At the end of the day I removed the ticket from the dashboard and drove off. No parking charge notice was attached to the windscreen so there was no indication that anything was untoward.

4. Just over a week later upon returning home I discover an envelope containing a postal Parking Charge Notice from <ES>; as evidenced by the Claimant. This was a surprise to me as would have expected to have seen a parking charge notice attached to the windscreen if an alleged offence on the day had occurred. Fortunately, by looking in my car bin, I found the ticket from the relevant day. A postal PCN for the scenario made me wonder if the parking firm is hoping the purchased parking ticket would have been thrown away.

5. The photo in the Parking Charge Notice letter clearly shows the ticket I purchased on the day displayed upside down on the dashboard. The photos of the car show a sunny day but don’t show how windy the big open car park was on the day. See page XX to see pictures of where the car is parked in the car park.

6. The photo in the Parking Charge Notice letter also shows a serial number on the reverse of the ticket which, considering the Parking Charge Notice wasn’t given on the day, allows plenty of time for the ticket to be traced to the valid ticket purchased on the day particularly as you have to enter the Registration of the Car into the ticket machine and is printed on the ticket.

7. The Claimant’s evidence of a specimen sign (Contract) states “A valid ticket must be purchased to park on this site and be displayed clearly in your front windscreen”. This from the Claimant’s own evidence was clearly adhered to. Any breach (which, for avoidance of doubt, is denied) was de minimis.

8. I have produced a map of the car park, page XX, which shows the entrance A where I entered the car park, position B where I parked and the location of the ticket machine used as C on the map.

9. On the XX June 2017 I wrote to the Claimant explaining the circumstances on the day and why I felt I was not liable for the parking charge, and a copy of my appeal is on pages XX and XX of XXX1 which included a copy of the ticket purchased and displayed on the day.

10. The appeal was not acknowledged or answered and on the XX June 2017 I received a demand with increased amount owing with no explanation for the increased amount and this letter threatened me with further debt recovery (page XX of XXX1). No figure for additional charges was agreed, or communicated to me, nor could it have formed part of the ‘alleged’ contract because no such indemnity costs were quantified on the Claimant’s signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print, when they were not. (See specimen sign on page XX of Claimant’s Witness Statement).

11. On the XX July 2017 I then received a Letter Before Claim (page XX of XXX1). Once again the sum of money demanded had increased, with no explanation. I responded (page XX of XXX1) on 10th July 2017, asking for more details and a copy of all documents purporting to the matter.

12. On the XX August 2017 I received a reply (pages XX and XX of XXX1) which unfortunately did not answer my questions.

13. On the XX August 2017 I responded to the Claimant’s solicitors (page XX of XXX1) once again asking for further details. With this letter I included a copy of the ticket purchased and displayed on the day. This letter was ignored.

14. I then received a Claim Form on XX September 2017. The Particulars of Claim set out in the Claim Form do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies what the terms of the alleged contract were, or how they were breached. The Particulars are not “clear and concise” as is required by CPR 16.4 1(a). There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. It just states “parking charges” which does not give any indication of on what basis the claim is brought. The claimant also failed to provide a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A).

15. I dispute that the Claimant has incurred £50 Solicitors costs to pursue an alleged £100 debt, the costs of which are in any case not recoverable. The claimant has described the charge of £50 as ‘legal representative’s costs’ not ‘contractual costs’ CPR 31.14 does not permit these to be recoverable in the Small Claims Court
The Claimant has at no time provided an explanation of how the sum claimed has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to the £160 now sought.

16. Under Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (amended) A parking operator needs to have Advertising Consent for signs displayed in the car park. The only relevant Advertising Planning Consent found for the car park in question has now lapsed (pages XX-YY of XX1). I therefore hold to strict proof that they have Claimant has advertising consent for signage.

17. On the day in question I had every intention to pay for parking, and I did so, and I genuinely thought I had complied with the terms of parking in the car park (and was justified in that belief). In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours and takes reasonable steps to comply with contractual terms, should not be penalised for breach outside of their control.

I believe that the facts stated in this statement is true

Thank you once again LoadsOfChildren for helping me out with a reply to one of my posts.
Have you had a look at their witness statement btw - link in post #96
Much better than previous ones I have seen but mostly just refuting my defence though.

Here is Version 2 of my WS with extra paragraph 5 and paragraphs 18-20 are amended/new->

I, XXX, of YYY will say as follows:

1. I am the Defendant in this matter. I am an unrepresented consumer who is not experienced at attending county court. In this statement I will refer to the documents contained in exhibit marked XXX1, by page number,[STRIKE] and Claimant’s Accredited Trade Organisation (ATA) (International Parking Community) Accredited Operator Scheme Code of Practice, by section numbers[/STRIKE].

2. On the XXX May 2017 I parked in XXX Car Park, walked to the nearest pay and display machine, purchased a ticket for the day and, confirm as matter of fact, I displayed it face up on the dashboard of the car. I am careful with parking tickets to ensure they are displayed correctly after a previous event a long time ago where a ticket at the end of the day was found in the foot-well. This was a council car park in the Lake District and when I appealed with a copy of the ticket the Local Council quashed the parking fine.

3. At the end of the day I removed the ticket from the dashboard and drove off. No parking charge notice was attached to the windscreen so there was no indication that anything was untoward.

4. Just over a week later upon returning home I discover an envelope containing a postal Parking Charge Notice from <ES>; as evidenced by the Claimant. This was a surprise to me as would have expected to have seen a parking charge notice attached to the windscreen if an alleged offence on the day had occurred. Fortunately, by looking in my car bin, I found the ticket from the relevant day. A postal PCN for the scenario made me wonder if the parking firm is hoping the purchased parking ticket would have been thrown away.

5. Looking closely at the ticket you can see it is made of a flimsy piece of paper with no sticky part to it so that it could be fixed in place on the dashboard or windscreen. I would be interested to know how many Parking Charge Notices for similar circumstance occur for this car park.

6. The photo in the Parking Charge Notice letter clearly shows the ticket I purchased on the day displayed upside down on the dashboard. The photos of the car show a sunny day but don’t show how windy the big open car park was on the day. See page XX to see pictures of where the car is parked in the car park.

7. The photo in the Parking Charge Notice letter also shows a serial number on the reverse of the ticket which, considering the Parking Charge Notice wasn’t given on the day, allows plenty of time for the ticket to be traced to the valid ticket purchased on the day particularly as you have to enter the Registration of the Car into the ticket machine and is printed on the ticket.

8. The Claimant’s evidence of a specimen sign (Contract) states “A valid ticket must be purchased to park on this site and be displayed clearly in your front windscreen”. This from the Claimant’s own evidence was clearly adhered to. Any breach (which, for avoidance of doubt, is denied) was de minimis.

9. I have produced a map of the car park, page XX, which shows the entrance A where I entered the car park, position B where I parked and the location of the ticket machine used as C on the map.

10. On the XX June 2017 I wrote to the Claimant explaining the circumstances on the day and why I felt I was not liable for the parking charge, and a copy of my appeal is on pages XX and XX of XXX1 which included a copy of the ticket purchased and displayed on the day.

11. The appeal was not acknowledged or answered and on the XX June 2017 I received a demand with increased amount owing with no explanation for the increased amount and this letter threatened me with further debt recovery (page XX of XXX1). No figure for additional charges was agreed, or communicated to me, nor could it have formed part of the ‘alleged’ contract because no such indemnity costs were quantified on the Claimant’s signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print, when they were not. (See specimen sign on page XX of Claimant’s Witness Statement).

12. On the XX July 2017 I then received a Letter Before Claim (page XX of XXX1). Once again the sum of money demanded had increased, with no explanation. I responded (page XX of XXX1) on 10th July 2017, asking for more details and a copy of all documents purporting to the matter.

13. On the XX August 2017 I received a reply (pages XX and XX of XXX1) which unfortunately did not answer my questions.

14. On the XX August 2017 I responded to the Claimant’s solicitors (page XX of XXX1) once again asking for further details. With this letter I included a copy of the ticket purchased and displayed on the day. This letter was ignored.

15. I then received a Claim Form on XX September 2017 (page xx of XXX1). The Particulars of Claim set out in the Claim Form do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies what the terms of the alleged contract were, or how they were breached. The Particulars are not “clear and concise” as is required by CPR 16.4 1(a). There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. It just states “parking charges” which does not give any indication of on what basis the claim is brought. The claimant also failed to provide a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A).

16. I dispute that the Claimant has incurred £50 Solicitors costs to pursue an alleged £100 debt, the costs of which are in any case not recoverable. The claimant has described the charge of £50 as ‘legal representative’s costs’ not ‘contractual costs’ CPR 31.14 does not permit these to be recoverable in the Small Claims Court
The Claimant has at no time provided an explanation of how the sum claimed has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to the £160 now sought.

17. Under Regulation 30 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (amended) A parking operator needs to have Advertising Consent for signs displayed in the car park. The only relevant Advertising Planning Consent found for the car park in question has now lapsed (pages XX-YY of XX1). I therefore hold to strict proof that they have Claimant has advertising consent for signage.

18. On the day in question I had every intention to pay for parking, and I did so, and I genuinely thought I had complied with the terms of parking in the car park (and was justified in that belief). There must either have been a gust of wind when you closed the door or one of the windows may have been slightly open and it may have flipped over when you were away from the car, and this small human error comes under the de minimis principle, particularly where the ticket had a serial/reference number on the back.

19. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours and takes reasonable steps to comply with contractual terms, should not be penalised for breach outside of their control.

20. Fluttering tickets are routinely accepted as a valid defence to council parking tickets and whilst contractual principles are not applied to such tickets, it is indicative of the fact that circumstances out of your control, and where the driver has clearly paid for the parking are deemed to be a good reason for tickets to be cancelled.

I believe that the facts stated in this statement is true