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  • FIRST POST
    • fireintheeast
    • By fireintheeast 11th Mar 18, 4:05 PM
    • 16Posts
    • 4Thanks
    fireintheeast
    Now received court claim
    • #1
    • 11th Mar 18, 4:05 PM
    Now received court claim 11th Mar 18 at 4:05 PM
    Hi and thanks for all of the information on this forum. I'd like to ask a couple of questions if anyone can help.
    The car park is managed by HX car management. Their solicitors are Gladstone's. The
    driver, not me, parked the car on a manned car park, purchased a ticket but didn't display the ticket the correct side up. The tickets are colour coded and I have the ticket. Nothing in the signage mentions displaying the ticket in a particular way.
    The PCN has the wrong reg number and wrong colour of the car.
    I wrote and explained after they wrote to me as Keeper. Obviously they rejected my appeal. I won't pay, hence the court papers.
    My main defence will be the lack of appropriate signage, non illuminated on a non illuminated car park in winter with arrival at dusk. Signs are misleading, contradictory, poorly positioned and mention a condition of parking that is impossible to meet, i.e. park in marked bays; there are no marked bays at all.
    However how relevant is the ticket being upside down and the wrong reg number on the PCN should it be a factor in my defence?
    I am following bargepoles advise and sending acknowledgement only allowing me 28 days to file a defence.
    Any guidance please?
    Last edited by fireintheeast; 11-03-2018 at 4:50 PM. Reason: remove of identification
Page 2
    • fireintheeast
    • By fireintheeast 16th Mar 18, 12:55 PM
    • 16 Posts
    • 4 Thanks
    fireintheeast
    Any suggestions for which points to modify / remove?
    • Coupon-mad
    • By Coupon-mad 17th Mar 18, 1:04 AM
    • 56,189 Posts
    • 69,856 Thanks
    Coupon-mad
    Just search Gladstones claim or Gladstones defence and you will have more links than we can give you. Change your default search to SHOW POSTS.
    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.

    • fireintheeast
    • By fireintheeast 17th Mar 18, 3:50 PM
    • 16 Posts
    • 4 Thanks
    fireintheeast
    I know this is long but it covers the points of my defence. I've added removed various items in line with suggestions from other posts.
    Have I missed anything or is the length of this likely to be prejudicial?


    Defence Statement

    Preliminary Matters

    1.1 The Particulars of Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached and fail to fulfil 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 description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence; are not clear and concise as is required by CPR Part 16.4 1(a).


    1.3 In C3GF84Y2 (Mason, Plymouth County Court) [2016] the judge struck out the claim brought by KBT Cornwall Ltd as Gladstone!!!8217;s 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 Gladstone!!!8217;s' template particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

    1.4 On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failed to meet CPR 16.4 and PD 16 paragraphs 7.3 !!!8211; 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 On the basis of the above, the Defendant requests the court strike out the claim for want of a cause of action and disregard of pre-court protocol.

    1.6 Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
    a) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
    b) A copy of any contract it is alleged was in place (e.g. copies of signage)
    c) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
    d) If charges over and above the initial charge are being claimed, the basis on which this is being claimed

    1.7 Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.


    Letter before Claim

    2. The Claimant did not and when prompted on 30th October 2017, refused in their reply of 11th December, to provide a compliant letter before claim. When pressed, the Claimant actually refused to send an amended, but compliant letter before court, !!!8220;believing that theirs was compliant!!!8221; even though !!!8220;for the sake of completeness!!!8221;, they gave some, but far from all of the prescribed information. They even failed to include the enclosures stipulated in their reply or the response form.

    2.1 In order to gain clarity and the information to assemble my defense I wrote again on the 21st December 2017 to the claimant!!!8217;s solicitor!!!8217;s asking for a range of information, as directed in the protocols, fundamental to the claim. The reply of 15th January 2018 was less than complete, although it contained the enclosures that were likely to be the ones missing from their previous correspondence of 11th December; they failed to make that clear.

    2.2 In failing to provide a compliant letter before claim, including the response form the defendant was not able to provide a full formal response. In correspondence I advised I would seek the assistance of the court in this matter. The claimant ignored my request.

    2.3 On the basis of the above, the Defendant requests the court strike out the claim for want of failure to comply with pre court protocols.
    Protection of Freedom

    3. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA").

    3.1 The parking charge notice allegedly attached to my vehicle is faulty.
    Schedule 4 paragraph 7 of the PoFA stipulates the mandatory set of information that must be included on the parking charge notice. Stating, If all of this information is not present then the Notice to Driver is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver. The information required includes,

      1. Which car the ticket relates to
      2. What land the car was parked on
      3. The period the car was parked
      4. When and how the parking rules were broken
    3.2 Even though the claimant had no right to use the DVLA database (and the defendant retains the right to take action under the Data Protection Act). The claimant had the opportunity to correct the mistake on the PCN, or at least bring it to the attention of the registered keeper at the first opportunity, when writing to the registered keeper. He chose not to be open, honest, truthful or trustworthy, instead sending a template and invalid Letter to Keeper.


    Appeal & ADR

    4.1 The PCN was identified as a different vehicle. As such the driver was under no obligation to pay the charge or to appeal the charge.

    4.2 The Defendant appealed the Parking Charge Notice on the 02/02/2017 explaining what had happened and included both a copy of the ticket displayed & the faulty PCN, providing the Claimant with clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and conditions. He had the opportunity to consider an appeal at that time. He chose not to, denying the defendant all right of appeal including that laid down in the code of practice for the IPC.

    4.3 This was an opportunity for the Claimant to act reasonably and cancel the charge. Not only was the charge not cancelled but the appeal was not considered. On subsequent correspondence I clarified the position as to whether I was the driver (denied) or the registered keeper (accepted).


    4.4 The above constitutes a direct breach of Practice Direction pre-action conduct and protocols; specifically - paragraph 3 (Objectives), and 8 (Settlement and ADR). As such the court's attention is drawn to paragraphs 13 - 16.

    4.5 The above 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 judges in the Beavis Case.




    Background


    I am XXX the Defendant and was the authorised registered keeper. I was not the driver in question at the time of the alleged incident. Any suggestion that I was the driver from correspondence was clarified in a letter dated 4th March.

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

    5. A ticket was paid for and displayed so all details could be seen when the car was locked and left parked. The Defendant has no knowledge of the point at which the ticket flipped over or why, but made reasonable endeavours, and complied by conduct. The claimants own evidence show the ticket to be in place, flipped.

    5.1 The Defendant cannot be responsible for the possibility that:
    a) A gust of wind or the passage of another vehicle, may have later dislodged or flipped 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 but this is a known predatory tactic among this industry.
    c) A passer-by may have leaned on the car, when squeezing between the cars to get to their own vehicle.


    5.2 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 !!!8211; or a factor outside anyone's control !!!8211; was to blame. This appears to have been a case of casus fortuitus "chance occurrence, unavoidable accident", which is a doctrine that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties renders the contract frustrated.

    5.3 Notwithstanding the above, the flimsiness of the ticket certainly played its part, and that is within the control of this industry, which is well aware of the problem, which even has a name attributed: ''fluttering tickets''. Because they profit from drivers' misfortune caused by their own tickets' inability to remain static under conceivable circumstances, it is averred that this Claimant wilfully decided not to address this issue (e.g. by adding sticky backing to the ticket).

    The defendant asks the court to consider the views of !!!8220;the joint report of the parking adjudicators for England & Wales (report published 2006)!!!8221; on such tickets, perhaps the closest thing to expert witnesses.

    5.4 The Claimant!!!8217;s own evidence will also show the ticket appears colour coded, evidently to assist in the easy identification of unpaid parking. Furthermore the ticket was purchased from an employee with ample opportunity, not taken, to draw attention to the use of the ticket & how to display it

    Fair Practices

    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.
    ''A term or notice is deemed to be !!!8216;unfair!!!8217; if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer. This is to be determined by taking into account the nature of the subject matter of the contract, and by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends [...] ''An unfair term of a consumer contract is not binding on the consumer.''(s.62 Consumer Rights Act).

    6.1 The term, !!!8216;A valid ticket must be purchased to park on this site The pay & display ticket must be displayed clearly in your front windscreen!!!8217; in particular the meaning of !!!8216;displayed clearly!!!8217; is not transparent per Section 68 of the CRA 2015. Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt.

    6.2 A valid ticket was displayed in the front windscreen of the Defendant!!!8217;s vehicle. If the Claimant wanted to impose a different term to say display in a particular manner, then they should have drafted clear terms to that effect.


    6.3 The T&C!!!8217;s make no mention of continuously displaying the ticket, as pointed out in the joint report by the parking adjudicators of England & Wales in 2006. The defendant is adamant that the ticket was correctly displayed on leaving the vehicle.


    6.4 The Claimant!!!8217;s own evidence will also show the ticket appears colour coded, evidently to assist in the easy identification of unpaid parking. Furthermore the ticket was purchased from an employee with ample opportunity, not taken, to draw attention to the use of the ticket & how to display it.


    Limited contract


    6. The signage on this site is woefully inadequate to form a contract. It is deficient in the positioning, wording, text size, containing contradictions and a requirement to park that is impossible to fulfil.


    6.1 The claimants own evidence to support his case clearly shows discrepancies in the positioning of the signage.

    6.2 In addition this car park is completely non-illuminated, as are all of the signs and the defendant parked during the hours of darkness.

    6.3 Part E, Schedule 1 of the Code of Practice of the International Parking Community of which the claimant is a member, clearly states the requirement of the signage.

    6.4 The conditions in this case are very different to the Parking Eye V Beavis case where clear terms & conditions are displayed on the signage. In fact the ruling of this case will assist my defence.




    Locus standi


    7. The Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder and therefore would have no locus standi to bring this case per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd.

    Without such evidence the case should be dismissed.

    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.


    7.2 The claimant supplied a location drawing for their signs. The defendant believes and has contradictory evidence from the claimant that this plan is incorrect and asks for copies of the site demarcation from the lease if there is such a lease from the landowner.



    No advertising consent for signage


    8 In this matter, the Defendant believes that the Claimant does not have advertisement consent in relation to its parking signage on the land in question (which are classed as !!!8220;advertisements!!!8221; 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 the principle ex dolo malo non oritur action should apply !!!8211; namely, the Claimant should not be allowed to found a cause of action on an immoral or an illegal act (in this case the 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.

    8.1 In addition to the criminal offence committed by the Claimant, it is in breach of various statutory and regulatory provisions set out in the Consumer Protection from Unfair Trading Regulations 2008 (Regulation 3 !!!8211; 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


    Claimant is seeking a penalty and inflated costs


    9. The Claimant seeks 249.50 which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown he did purchase a valid ticket and the Claimant has suffered no loss, and because any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.


    9.1 The claimant has not sought to minimise the costs as required. He used 2 debt collectors even though the defendant has made clear at every stage of correspondence that he refutes the debt.

    9.2 60 of the 249.50 !!!8216;parking charge!!!8217; (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.

    9.3 The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of 100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

    9.4 There is no possible commercial justification for such a trivial error for the Claimant. The Beavis v ParkingEye [2015] Judges at the Court of Appeal stated there was a commercial justification as it was free car park and needed to prevent overstays of the free 2 hour stay. Whereas in this case the car park is a commercially viable and busy Pay and Display car park where revenue is gained as people need to pay to park there for an agreed period of time.

    9.5 The Claimant has claimed a 50 legal representative!!!8217;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.

    9.6 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; !!!8220;JUDGMENT FOR CLAIMANT FOR 85 PLUS ISSUE COSTS!!!8221;. These were presumably the 25 filing fee and 25 hearing fee. The 50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

    9.7 I deny the Claimant is entitled to any interest whatsoever


    9.8 In the event that the claimant withdraws the claim may I ask the court to consider the costs incurred in answering the complaint to date. I ask consideration for,

      1. Postal costs of correspondence, currently in excess of 15 letters
      2. Travel costs to the site twice to obtain evidence
      3. My time in dealing with this matter, in excess of 20 hours so far.

    Finally.

    10. The Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected, given the appalling administration shown so far, that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defense.


    I confirm that the above facts and statements are true to the best of my knowledge and recollection.




    Name - Signed - Date
    • Coupon-mad
    • By Coupon-mad 17th Mar 18, 3:56 PM
    • 56,189 Posts
    • 69,856 Thanks
    Coupon-mad
    DEFENCE

    Not 'statement'.

    I think you need to read more recent threads, and remove the waffle and the pointless things about advertising consent and listing things that you don't need to list. Needs to be more concise.

    This sort of thing is said all over the place every week on the forum:

    http://forums.moneysavingexpert.com/showthread.php?p=73882196#post73882196
    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.

    • fireintheeast
    • By fireintheeast 17th Mar 18, 4:14 PM
    • 16 Posts
    • 4 Thanks
    fireintheeast
    I must be reading the wrong posts because most of this comes from one defence which seems to have been well received.
    Understand that the advertising consent aspect isn't vital so can come out and I can reduce the list in 3.1 just to include point A, but which other points do you think are superfluous.
    I will look to use fewer words where I can but if anything I was going to add more about the code of practise (not now though)
    • Coupon-mad
    • By Coupon-mad 17th Mar 18, 4:18 PM
    • 56,189 Posts
    • 69,856 Thanks
    Coupon-mad
    You need only mention that they have breached the CoP, don't have to go into detail how nor quote from it at this stage. You can use sections of the CoP later, as evidence nearer the hearing date.

    A long defence might have been well received if we were jaded, as we comment on defences several times a day. See the linked one I showed you where I stated what to remove.

    EDITED TO ADD:


    On pepipoo I've just seen a copy of a HX Notice to Keeper, which is VERY CLEARLY NON-POFA:

    http://forums.pepipoo.com/index.php?showtopic=119328

    You can spot why, good research for newbies.

    CLUE: the important giveaway paragraph ends with the word 'driver'.
    Last edited by Coupon-mad; 18-03-2018 at 4:16 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.

    • fireintheeast
    • By fireintheeast 18th Mar 18, 8:44 PM
    • 16 Posts
    • 4 Thanks
    fireintheeast
    That's exactly the same Letter I received except mine is even better as they don't even bother putting the address of the car park on it. I was adding that to my defence as well but will as advised strip out some other stuff.
    • fireintheeast
    • By fireintheeast 19th Mar 18, 11:25 AM
    • 16 Posts
    • 4 Thanks
    fireintheeast
    Here's my latest version. I've reduced the length somewhat. Any comments?




    Defence

    Preliminary Matters

    1.1 The Particulars of Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached and fail to fulfil 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 description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence; are not clear and concise as is required by CPR Part 16.4 1(a).



    In PPM v Keeper C7GF75EN 20/07/2017. The judge dismissed a similar case commenting !!!8220;she was sick of telling Gladstone!!!8217;s the same things!!!8221;.


    .


    1.2 On the basis of the above, the Defendant requests the court strike out the claim for want of a cause of action and disregard of pre-court protocol.

    1.3 Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions.




    1.4 If these Particulars are refiled, the Defendant asks for reasonable time to file / consider an amended defence.




    Letter before Claim





    2. The Claimant did not and when prompted on 30th October 2017, refused in their reply of 11th December, to provide a compliant letter before claim. When pressed, the Claimant actually refused to send an amended, but compliant letter before court, !!!8220;believing that theirs was compliant!!!8221; even though !!!8220;for the sake of completeness!!!8221;, they gave some, but far from all of the prescribed information. They even failed to include the enclosures stipulated in their reply or the response form.





    2.1 In order to gain clarity and the information to assemble my defense I wrote again on the 21st December 2017 to the claimant!!!8217;s solicitor!!!8217;s asking for a range of information, as directed in the protocols, fundamental to the claim. The reply of 15th January 2018 was less than complete, although it contained the enclosures that were likely to be the ones missing from their previous correspondence of 11th December; they failed to make that clear.





    Protection of Freedom





    3. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA").





    3.1 The parking charge notice allegedly attached to the defendants vehicle is faulty.


    Schedule 4 paragraph 7 of the PoFA stipulates the mandatory set of information that must be included on the parking charge notice. Stating, If all of this information is not present then the Notice to Driver is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver. The information required includes,





      1. Which car the ticket relates to


    3.2 Even though the claimant had no right to use the DVLA database (and the defendant retains the right to take action under the Data Protection Act). The claimant had the opportunity to correct the mistake on the PCN, or at least bring it to the attention of the registered keeper at the first opportunity, when writing to the registered keeper. He chose not to be open, honest, truthful or trustworthy, instead sending a template and invalid Letter to Keeper.





    3.3 To use PoFA the letter to keeper needs to comply with the regulations. Not surprisingly it doesn!!!8217;t. It fails even refer to the transfer of responsibility to the keeper, mention the location the event alleged or offer any form of appeal amongst other failings.





    Appeal & ADR





    4.1 The Parking Charge Noticed identified a different vehicle to the defendant's. As such the driver was under no obligation to pay the charge or to appeal the charge.



    4.2 The Defendant appealed the Parking Charge Notice on the 02/02/2017 after receiving a letter to keeper from the claimant; explaining what had happened; including both a copy of the ticket displayed & the faulty PCN, providing the Claimant with clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and conditions. He had the opportunity to consider an appeal at that time. He chose not to, denying the defendant all right of appeal including that laid down in the code of practice for the IPC.




    4.3 The above constitutes a direct breach of Practice Direction pre-action conduct and protocols; specifically - paragraph 3 (Objectives), and 8 (Settlement and ADR).
    4.4 The above 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 judges in the Beavis Case.

    Background




    I am XXX the Defendant and was the registered keeper of the vehicle. The defendant was not the driver at the time of the alleged incident.
    The Defendant denies liability for the entirety of the claim for the following reasons:

    5. A ticket was paid for and displayed so all details could be seen when the car was locked and left parked. The Defendant has no knowledge of the point at which the ticket flipped over or why. The claimants own evidence show the ticket to be in place, albeit flipped.

    5.1 Notwithstanding the above, the flimsiness of the ticket certainly played its part, and that is within the control of this industry, which is well aware of the problem, which even has a name attributed: ''fluttering tickets''. Because they profit from drivers' misfortune caused by their own tickets' inability to remain static under conceivable circumstances, it is averred that this Claimant wilfully decided not to address this issue (e.g. by adding sticky backing to the ticket).



    The defendant asks the court to consider the views of !!!8220;the joint report of the parking adjudicators for England & Wales (report published 2006)!!!8221; on such tickets, perhaps the closest thing to expert witnesses.



    5.2 The Claimant!!!8217;s own evidence will also show the ticket appears colour coded, evidently to assist in the easy identification of unpaid parking. Furthermore the ticket was purchased from an employee with ample opportunity, not taken, to draw attention to the use of the ticket & how to display it






    5.3 Evidence from another HX managed car park will show that the claimant is aware of the shortcoming.



    Fair Practices



    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.
    ''A term or notice is deemed to be !!!8216;unfair!!!8217; if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer ''An unfair term of a consumer contract is not binding on the consumer.''(s.62 Consumer Rights Act).
    6.1 The term, !!!8216;A valid ticket must be purchased to park on this site The pay & display ticket must be displayed clearly in your front windscreen!!!8217;; in particular the meaning of !!!8216;displayed clearly!!!8217; is not transparent per Section 68 of the CRA 2015. Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt.

    6.2 A valid ticket was displayed in the front windscreen of the Defendant!!!8217;s vehicle. If the Claimant wanted to impose a different term to say display in a particular manner, then they should have drafted clear terms to that effect. The claimant does use different terms on other car parks it manages expressly stating how the ticket should be displayed.






    6.3 The T&C!!!8217;s make no mention of continuously displaying the ticket, as pointed out in the joint report by the parking adjudicators of England & Wales in 2006. The defendant is adamant that the ticket was correctly displayed on leaving the vehicle.



    6.4 The Claimant!!!8217;s own evidence will also show the ticket appears colour coded, evidently to assist in the easy identification of unpaid parking. Furthermore the ticket was purchased from an employee with ample opportunity, not taken, to draw attention to the use of the ticket & how to display it.




    Limited contract




    6. The signage on this site is woefully inadequate to form a contract. It is deficient in the positioning, wording, text size, containing contradictions and a requirement to park that is impossible to fulfil.






    6.1 The claimants own evidence to support his case clearly shows discrepancies in the positioning of the signage.





    6.2 In addition this car park is completely non-illuminated, as are all of the signs and the defendant parked during the hours of darkness.





    6.3 Part E, Schedule 1 of the Code of Practice of the International Parking Community of which the claimant is a member, clearly states the requirement of the signage.





    6.4 The conditions in this case are very different to the Parking Eye V Beavis case where clear terms & conditions are displayed on the signage. In fact the ruling of this case will assist my defence.



    Locus standi




    7. The Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Without such evidence the case should be dismissed.

    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.






    7.2 The claimant supplied a location drawing for their signs. The defendant believes and has contradictory evidence from the claimant that this plan is incorrect and asks for copies of the site demarcation from the lease if there is such a lease from the landowner.
















    Claimant is seeking a penalty and inflated costs




    9. The Claimant seeks 249.50 which is an extravagant and unconscionable penalty, and therefore unenforceable. Any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.






    9.1 The claimant has not sought to minimise the costs as required. He used 2 debt collectors even though the defendant has made clear at every stage of correspondence that he refutes the debt.



    9.2 60 of the 249.50 !!!8216;parking charge!!!8217; (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.

    9.3 The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of 100 to agree to the alleged contract, had the terms and conditions of the contract been properly displayed and accessible.

    9.4 The Claimant has claimed a 50 legal representative!!!8217;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; !!!8220;JUDGMENT FOR CLAIMANT FOR 85 PLUS ISSUE COSTS!!!8221;. These were presumably the 25 filing fee and 25 hearing fee. The 50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

    9.6 I deny the Claimant is entitled to any interest whatsoever






    9.7 In the event that the claimant withdraws the claim may I ask the court to consider the costs incurred in answering the complaint to date. I ask consideration for,


      1. Postal costs of correspondence, currently in excess of 15 letters
      2. Travel costs to the site twice to obtain evidence
      3. My time in dealing with this matter, in excess of 5 hours so far.
      4. Interest on the costs incurred





    Finally.



    10. The Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected, given the appalling administration shown so far, that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defense.




    I confirm that the above facts and statements are true to the best of my knowledge and recollection.

















    Name - Signed - Date
    • Coupon-mad
    • By Coupon-mad 19th Mar 18, 6:47 PM
    • 56,189 Posts
    • 69,856 Thanks
    Coupon-mad
    In PPM v Keeper C7GF75EN 20/07/2017. The judge dismissed a similar case commenting 'she was sick of telling Gladstone's the same things'.
    What's that case and how is it applicable and do you have a transcript, otherwise it adds nothing. Same with this one, not worth mentioning:
    The 50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.
    Protection of Freedom
    Should be Protection of Freedoms Act 2012

    Finally
    Should be Conclusion
    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.

    • fireintheeast
    • By fireintheeast 19th Mar 18, 7:19 PM
    • 16 Posts
    • 4 Thanks
    fireintheeast
    CM Ok I see what you mean. I'll make those changes. Thanks very much.
    Those apart do you feel I'm good to go?
    • Lamilad
    • By Lamilad 19th Mar 18, 10:05 PM
    • 1,348 Posts
    • 2,695 Thanks
    Lamilad
    2. The Claimant did not and when prompted on 30th October 2017, refused in their reply of 11th December, to provide a compliant letter before claim. When pressed, the Claimant actually refused to send an amended, but compliant letter before court, !!!8220;believing that theirs was compliant!!!8221; even though !!!8220;for the sake of completeness!!!8221;, they gave some, but far from all of the prescribed information. They even failed to include the enclosures stipulated in their reply or the response form.





    2.1 In order to gain clarity and the information to assemble my defense I wrote again on the 21st December 2017 to the claimant!!!8217;s solicitor!!!8217;s asking for a range of information, as directed in the protocols, fundamental to the claim. The reply of 15th January 2018 was less than complete, although it contained the enclosures that were likely to be the ones missing from their previous correspondence of 11th December; they failed to make that clear.
    This too waffley. You can 'tell the story' of what happened, what you did, what they did/ didn't do in your witness statement. You defence lists all the reasons why you dispute the claim and your basis for challenging it.

    Just say that that they did not send a compliant letter before claim in clear breach of the pre action protocol for debt claims (PaP), as such you invite the court to strike the claim under it's own case management powers pursuant to CPR 3.4. Alternatively the claim should be stayed pending the claimant's full compliance with the protocol.
    • Lamilad
    • By Lamilad 19th Mar 18, 10:19 PM
    • 1,348 Posts
    • 2,695 Thanks
    Lamilad
    Schedule 4 paragraph 7 of the PoFA stipulates the mandatory set of information that must be included on the parking charge notice. Stating, If all of this information is not present then the Notice to Driver is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver. The information required includes,
    1. Which car the ticket relates to
    3.2 Even though the claimant had no right to use the DVLA database (and the defendant retains the right to take action under the Data Protection Act). The claimant had the opportunity to correct the mistake on the PCN, or at least bring it to the attention of the registered keeper at the first opportunity, when writing to the registered keeper. He chose not to be open, honest, truthful or trustworthy, instead sending a template and invalid Letter to Keeper.
    Maybe I'm not reading this right but it doesn't make any sense. Are you saying that they haven't identified the vehicle in the NtD? What is it they haven't been open/honest about? It's not accurate to say they had no right use the dvla database. You could say they had no reasonable cause to request your personal private data from them but tbh, it's not really relevant to your case

    3.3 To use PoFA the letter to keeper needs to comply with the regulations. Not surprisingly it doesn!!!8217;t. It fails even refer to the transfer of responsibility to the keeper, mention the location the event alleged or offer any form of appeal amongst other failings.
    You've already said they don't comply with pofa you don't need to say it again. In fact, instead of using several paras to say they haven't complied, you could have summed it up in one - see Johnersh defence linked in newbies.
    Last edited by Lamilad; 19-03-2018 at 10:21 PM.
    • Lamilad
    • By Lamilad 19th Mar 18, 10:38 PM
    • 1,348 Posts
    • 2,695 Thanks
    Lamilad
    4.1 The Parking Charge Noticed identified a different vehicle to the defendant's. As such the driver was under no obligation to pay the charge or to appeal the charge.
    So, this is the answer to my question above, but you see the inherent flaw with how information flows

    4.2 The Defendant appealed the Parking Charge Notice on the 02/02/2017 after receiving a letter to keeper from the claimant; explaining what had happened; including both a copy of the ticket displayed & the faulty PCN, providing the Claimant with clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and conditions. He had the opportunity to consider an appeal at that time. He chose not to, denying the defendant all right of appeal including that laid down in the code of practice for the IPC.
    Again, it's not clear what you're saying here. Did they ignore your appeal or reject it? Just say exactly what the issue is and why it is wrong i.e:
    * They ignored my appeal
    * This a breach of CoP and PaP

    I am XXX the Defendant and was the registered keeper of the vehicle. The defendant was not the driver at the time of the alleged incident.
    The Defendant denies liability for the entirety of the claim for the following reasons:
    This should be the first sentence, above preliminary matters
    • fireintheeast
    • By fireintheeast 20th Mar 18, 8:49 AM
    • 16 Posts
    • 4 Thanks
    fireintheeast
    Many thanks for that. I'll make those changes.
    • fireintheeast
    • By fireintheeast 15th Apr 18, 4:52 PM
    • 16 Posts
    • 4 Thanks
    fireintheeast
    Posted my defence, went for the 28 day option. Received back acknowledgement. Gladstones have written back saying they want to use papers only or the claimants court which I'll disagree with.
    While building my defence I saw a post with a photo of car park signage stating how to display the ticket, i.e. with the details showing.
    Can anyone recognise that photo because I would like to use it in my defence. It was a photo of a HX Car Park.
    • nosferatu1001
    • By nosferatu1001 15th Apr 18, 6:08 PM
    • 2,270 Posts
    • 2,702 Thanks
    nosferatu1001
    Did you search for,posts containing that? Would seem a first start.

    Ensure you use the covering letter to make it clear why this isn't simple at all.
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