Popla appeal unsuccessful...Civil Enforcement

vicki1930

Good Morning...2nd attempt! I would be grateful if you could let me know what you think...thanks

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Civil Enforcement Ltd (Claimant)

-and-

xxxxxxxxxxxx (Defendant)



DEFENCE


1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question at the time of the alleged incident.

2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at xxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

2.1. The PCN stated the contravention as 'Payment not made in accordance with terms displayed on signage” and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because it is already common ground that the correct parking charge (tariff) had already been paid.

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

3. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the Claimant’s case that:
a. There was a contract formed by the Defendant and the Claimant on xx/xx/2016.
b. There was an agreement to pay a sum or parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.

4. It is denied that:
a. A contract was formed to pay anything more than the advertised tariff;
b. There was any agreement to pay a further penalty parking charge;
c. That there were Terms and Conditions prominently displayed around the site which prominently displayed the £100 penalty.
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums;
e. the claimant in fact expended the claimed additional sums;


Primary defence - payment was made but the system hid a concealed pitfall or trap

5. The Defendant made payment in full of the amount due. Payment for parking was made using the pay and display machine.

5.1. The payment channel did not indicate any failure to make payment and a ticket was provided.

5.2. The Defendant duly received a PCN in the post, and did not know at this point why it had been issued as payment had been made in full and a ticket displayed.

5.3. The PCN was late arriving and was received outside of the time afforded by The Protection of Freedoms Act 2012 schedule 4 section 9.

5.4. The DPA states that personal data is 'inaccurate' if it is incorrect or misleading as to any matter of fact. The matter of fact here is that payment of the tariff was made by the driver of the vehicle which was captured by ANPR, and for which the Claimant duly obtained the Defendant's personal data from the DVLA.

5.5. Given the fact that the ANPR data did not match with a payment made, an automated PCN was issued. However, it was within the gift of the Claimant to ensure before starting enforcement at any site, that their systems are fit for purpose, i.e. such that where a full VRN is required then payment not be accepted and a ticket not issued until the full VNR has been entered.

5.6. A PCN in these circumstances is completely foreseeable by a professional parking firm, and it is averred that this punitive charge relies upon the Claimant's own data being wrong at the outset, and going unnoticed by a driver.

5.7. The 'automated decision' of the Claimant's chosen payment app to decide to set one of the registered cars as 'default' is not the Defendant's responsibility, especially since it was done without the Defendant's consent or knowledge. It is not reasonable in these circumstances for the driver to be forced after the event to assume the unknown burden or obligation of spotting an error in the stream of data that emanates solely from the Claimant's payment agent.

5.7. The Defendant pointed out the data processing error, as soon as it became apparent that this was the reason for the PCN issue.

5.8. Thus, given the Defendant's appeal and the ANPR camera system, which proved which car was actually in this car park, the Claimant knew about the error and was afforded ample opportunity to rectify the inaccurate data held by their system. At all times, from the ANPR image, the Claimant knew the correct VRN.


No agreement on the penalty and no contract formed by conduct

6. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.

6.1. It is clear that no conduct by the Defendant caused the penalty to arise and a professional parking firm could not reasonably lay any blame with the Defendant, for their own agent's data storage presumption and negligence. The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring 'open dealing' and the doctrine of good faith.

6.2. Further, the Claimant will no doubt hope to convince the court that a 'relevant contract' existed and was breached. As this would be a consumer contract, it must be 'fair' and 'transparent' as set out in the Consumer Rights Act 2015, and must also be a valid and enforceable ('distance') telephone payment contract that is not unconscionable, given the facts of the case. The Defendant avers that this punitive charge fails in all respects.

6.2.2. And the Claimant would have the court believe that a 'relevant obligation' existed, which under the Protection of Freedoms Act 2012 (setting out the will of Parliament for parking tickets issued on private land, even if a Claimant is not relying upon that Act) is defined as ''an obligation arising under the terms of a relevant contract''.

6.2.3. The Defendant avers that there was no such obligation or burden that could fairly and squarely fall at the feet of the Defendant that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 'Prohibitions' of the Consumer Protection from Unfair Trading Regulations 2008.

7. The Claimant may also try to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the facts. To quote from the decision in Beavis:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 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.''

No standing or landowner authority

8. Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices under defined parameters (including when caused by failure of their own data processing/excessive storage) and to form/offer contracts in their own name, and to pursue payment by means of litigation.

No legitimate interest or commercial justification

9. It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing paying patrons for a hundredfold penalty, for not noticing inaccurate data presented to them on behalf of the Claimant, in small print.

9.2. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

10. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

System

it was rejected and she appealed to popla although at this stage she still did not know why the PCN had been issued.

Could we see a pic of the sign and the contract that CEL have put into their POPLA pack. Is the sign they put into the pack the same as the one that is there?

vicki1930

Hi...I have got the stuff from popla but struggling to copy it into here...thought I could copy and paste from my photos but can't...sorry if I'm being thick but can you help?

KeithP

Upload the image to a hosting website like tinypic, there are many many others, then post a link to it here.

vicki1930

Hope this has worked?

The sign is the same as the one that is at the actual site

KeithP

Yes it works.

But unfortunately you have left a lot of identifying information visible - e.g. your full name, your full address, your full car reg. no., PCN no., etc.

Suggest you remove the link from your latest post and adjust the images before posting a new link.

Coupon-mad

vicki1930 wrote: »

My daughter received a pcn from Civil Enforcement Ltd after parking in Market Street, Cleethorpes...it stated for parking "not in accordance with the signage". She still had the 2hr ticket which she had displayed and not exceeded and so challenged the pcn...it was rejected and she appealed to popla although at this stage she still did not know why the PCN had been issued. Popla advised it was because she did not enter her full Reg number but just the figures (which was a genuine mistake)

Since the above was the case, the below needs changing as she can't blame the app for bringing forward inaccurate data:

5.7. The 'automated decision' of the Claimant's chosen payment app to decide to set one of the registered cars as 'default' is not the Defendant's responsibility, especially since it was done without the Defendant's consent or knowledge. It is not reasonable in these circumstances for the driver to be forced after the event to assume the unknown burden or obligation of spotting an error in the stream of data that emanates solely from the Claimant's payment agent.

The error emanated from the driver (human error) and it is defendable because a parking firm can't penalise people for what they KNEW was inaccurate data (a mere admin issue, easily cleared up).

You need to check the template you used, which IMHO is much better because it was the right sort of one to use, this time, just needs to be accurate about what it is saying.

vicki1930

Just to clarify...I understand what you are saying in respect of the paragraph that needs amending....I'm not sure on your last point about checking the template I've used. If I amend it as you've suggested then is it ok?

vicki1930

https://www.dropbox.com/sh/mehgyqhv7x2gwzc/AADFijdaapi7YlzcEiWtT9Kza?dl=0

Photo of signage and contract provided in POPLA pack

Coupon-mad

I just mean the fine tooth comb proof-reading is down to you (get a fresh pair of eyes to check it at home). Just to make sure there is nothing copied that talks about something that didn't happen/isn't right for your case.

If you are happy with it all (and yep it's the right sort of wording for your case IMHO) then sign & date a printed copy and email it to the CCBCAQ email address.

Can you report this please, with no identifiers to your name this time:

Could we see a pic of the sign and the contract that CEL have put into their POPLA pack. Is the sign they put into the pack the same as the one that is there?