Fluttering Ticket Robodefence

This is from this thread on Pepipoo.com. Fluttering tickets are a well known phenomenon within the parking industry. Solving it would cost fractions of a pence to sort but it would rob (no pun intended) both the private and public car park operators of significant revenues. A judge expressed the view recently that as it can be foreseen that the ticket might fall off it's the drivers job (and not the parking contractor's) to make sure it stays in place.

Statement of defence

I am the defendant in this matter.

The claim is denied in its entirety. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's case.

1.The Defendant denies any liability whatsoever to the Claimant.

I did display a ticket which was in place as I left the car and have no idea at what point later it may have flipped over or why. Refusal to accept the ticket as proof of payment when the Claimant's own evidence proves it was there (but had allegedly blown over at some later time after I left the car, perhaps by air through the vents in part due to 'Storm Katie's' 80 mph winds which were in full force at this time) appears to be a case of unjust enrichment over and above the tariff paid. This ‘force majeure’ was caused by severe weather outside the fault of the driver and not something which should be a matter for either party to be bound by, nor for either party to benefit from, in terms of any 'charge' or penalty. In fact it would be reasonable to expect a parking firm, as a purported service provider in a customer car park open to the general public, to provide non-flimsy tickets and a method of attachment such as a sticky or double sided ticket - where they know this is a repeated issue. I include the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' in my defence, because the Supreme Court (and the Court of Appeal Judges) in Beavis were happy to draw similarities with Council PCNs:

http://www.manchester.gov.uk/egov_download...Report_2006.pdf

In DB05057D the adjudicator said: “…having seen the original ticket I note that it is
made of rather thin paper which is likely to be dislodged when a car door is shut. It
may be that the Council would argue that it is the driver's responsibility to ensure that
the ticket is on display when the vehicle is left, but on the other hand if it chooses to
issue pay and display tickets made of such thin paper it must expect that now and
again this type of situation will arise.”

In DB05035M the appellant bought a ticket. It fell from the dash when she closed the door
so she picked it up and replaced it. She then opened the back door to remove some items
and found the p&d on the foot well on her return. The adjudicator had the opportunity to examine
the original ticket. It was made of flimsy paper with no adhesive mechanism.''

In HV05040D the adjudicator accepted the appellant’s evidence that she had
displayed the ticket on the dash and checked after closing the door that it was still
there. He said: “The Council contend that the onus is on the motorist to ensure that
the ticket is properly displayed but except for using sellotape or blutack, which some
motorists do, I do not know what else she could have done. Such measures may be
an answer to the problem but it is a problem created by the Council’s decision to use
non sticky tickets. I am not aware of any signs in the car park suggesting the use of
adhesives by motorists when parking their cars.

[Editor Note: Check the signs to see if there is actually a requirement to display]

2.
The Claimant has not complied with the pre-court protocol. There was no compliant ‘Letter before County Court Claim’, under the Practice Direction. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “parking charges” which does not give any indication of on what basis the claim is brought. 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. The defendant wrote to the Claimant on the 16th July 2016 and again on the 18th of July 2016 with requests to clarify issues but the claimant declined to respond to the requests. The defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action.

3.
It is believed that the Claimant has no standing to bring this claim. The proper Claimant is the landowner. They have failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to KBT Cornwall Ltd T/as Armtrac Security Services . The Defendant claims that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

[Editor Note: "It is believed" is an odd phrase as it leaves the matter in the air. Judges want certainty so simply leave this bit out and start - "The claimant has no ...."]

4.
The Claimant has failed to establish driver liability for the parking charges and therefore there is no cause of action.

5.
No evidence of parking times has been presented.

6.
This charge is not supported by the Beavis case, which held that a charge in a specific retail park was allowable because of the specific, legitimate interests of the operators and landowner, offering a licence to park formed by very clear signage and the fact that the charge was considered not unconscionable, considering all the facts of that case. In my case, it is not disputed that the tariff was paid and it is a fact that the ticket was displayed when parking, so a further charge of three hundred times that tariff of 50p is argued to fall foul of the penalty rule and is 'out of all proportion' to any legitimate interest.

7.
Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999.

[Editor Note: UTCCR 1999 has been replaced by the Consumer Rights Act 2015. But if you want to push the issue of "unfair" have a look at the guidance here. Much more readable than the Act itself. Use the flowchart on page 18.]

8.
The Defendant also disputes that the Claimant has incurred £50 solicitor cost. The Particulars of Claim are incompetent in disclosing no cause of action.

[Editor Note: The PoC's are deficient and not incompetent. The solicitor has been incompetent and is not due their £50]

9.
The Defendant invites the court to strike out the claim as having no prospect of success.

I believe the facts stated in this defence are true. The above points will be explained fully in the Witness Statement, and Skeleton Argument, which I shall serve not later than 14 days before the date of any hearing.

[Editor Note: Most people forget they have to provide Witness Statement, and Skeleton Argument. When you get the Notice of Allocation, it will tell you the date by which these should be sent to the court. Make a note in your diary to check]

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