POPLA decision unsuccessful advice/help

AMK077

I've come up with the following defence using other peoples examples from the forum (hope that's ok):

IN THE COUNTY COURT
CLAIM No: ******
BETWEEN:
Civil Enforcement Limited (Claimant)
-and-

******************* (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.

2.1. 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. The Defendant has no idea whether this was human error in relaying the wrong information, or a system error in recording it. However, the Claimant at all times had the correct VRN in their database, due to their ANPR images, and was clearly content to use what they knew to be the correct data, in order to obtain the Defendant's data from the DVLA.

3.1. It is averred that the 'fair and open dealing' approach, in compliance with the Consumer Rights Act 2015, would have been to instead use the correct data from ANPR images to overwrite the close-match inaccurate data and for no PCN to be issued at all, since a parking charge cannot be raised purely to punish a driver.

3.2 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 xxxxxxxxxxxxxxxxxxxxxxxx.

4. The PCN stated the contravention as ‘Failed to make a valid payment' and this contravention is denied. The Defendant denies liability for the purported Parking Charge Notice (PCN), not least because it is already common ground that the correct parking charge (tariff) had already been paid and the number and letters inputted identified the vehicle, setting it apart from any other cars using the site. If the Claimant disagrees they must demonstrate with evidence that more than one car with the number and letters ‘4FKA' was on site and had not paid.

5. It is denied that:
a. the Defendant failed to make a valid payment for his vehicle;
b. a contract was formed to pay anything more than the advertised tariff;
c. There was any agreement to pay a further penalty parking charge;
d. in addition to the parking charge there was an agreement to pay additional and unspecified additional sums;

Primary defence - payment was made

6. The Defendant made payment in full of the amount due. Payment for parking was made using the pay and display ticket (PDT) machine.

6.1. The payment channel did not indicate any failure to make payment, nor prompt a driver to also enter additional letters or numbers and a ticket was provided so the Defendant concludes that the contract de facto granted a parking session/licence, based on the number and letters entered.

6.2. The Defendant unexpectedly 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. The PCN failed to set out the reasons for the parking charge, nor did it have regard to, nor even mention or offset the tariff which it as common ground from the outset, was already paid.

6.3. At POPLA appeal stage, the Defendant was sent a list of VRNs and learned that the charge was punishment for entering the last four digits of their VRN. The list shows only 7 VRNs/payments during the period the Defendants vehicle was in the car park, another one of which is not a valid VRN. So in the 15 minute period, over 28% of paying patrons entered incorrect VRNs. No average, circumspect paying driver would deliberately or negligently breach, and in doing so, agree to pay an unconscionable £100 penalty on top of the £1 tariff.

6.4. 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. Clearly the Claimant had sufficient information to conclude from their secondary data stream (ANPR) that a simple oversight (human error) had been made, yet instead of rectifying their data to match the payment, they obtained the Defendant's personal data from the DVLA.

6.5. Given the fact that the ANPR data did not match with a payment made, an automated PCN was issued. However, parking firms are prohibited from issuing ANPR PCNs without manual checking by human intervention (BPA Code of Practice and AOS rules). It was within the gift and duties of the Claimant to ensure before starting enforcement at any site, that their systems are fit for purpose and the terms are fair, i.e. where a ''full VRN'' is required, then payment not be accepted and a ticket not issued until the full VRN has been entered. Indeed, modern PDT machines commonly display the image of cars that have arrived with a touch screen to select the right car, thus avoiding any allegation of error leading to an unfair (not 'agreed') three figure penalty.

6.6. A PCN in these circumstances is completely foreseeable by a professional parking firm, and it is averred that this punitive charge relies upon taking advantage of common human error and/or a reasonable interpretation of the sign requiring the 'vehicle registration number'. Over 28% of drivers getting it 'wrong' is sufficient evidence of a lack of clarity and ambiguity that is open to interpretation, and the innocuous instruction to enter a number was not an 'understandable ingredient of a scheme serving legitimate interests'.

6.7. Thus, given the Defendant's appeal and the ANPR camera system, showed the vehicle with the number and letters ‘4FKA' was in this car park, the Claimant knew about the error and was afforded ample opportunity to rectify the inaccurate data held by one of their two conflicting data streams.

6.8. At all times, from the ANPR image, the Claimant knew the correct VRN and it is averred that the PCN cannot have been properly or fairly checked before it was issued, since there was nothing to deter and no legitimate interest in merely penalising a consumer.

No agreement nor contract formed by conduct - Beavis is distinguished

7. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed beyond the agreement to pay the tariff and identify the car 'registration number'. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.

7.1. The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring 'open dealing' and the doctrine of good faith. There was a complete lack of any fair warning on the screen: ''are you sure, have you entered your full VRN? A penalty of £100 applies if inaccurate or incomplete number plates are entered here''. In fact, the images shown to POPLA of the ticket machine, do not even show - anywhere - a sum of £100 to be paid. If it is there it is positively hidden, buried in small print; only the £1, £1.50, £3.50 and £6 alternative tariffs could possibly be deemed 'agreed' and understood.

7.2. The Defendant avers that there was no relevant contract or relevant 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.

8. The Claimant may 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 fact that the innocent conduct of the Defendant caused no issues to other drivers, took up no valuable parking space that the driver was not entitled to use, and the sum for parking was in fact, paid. So there was no disincentive or deterrent excuse, no compelling legitimate interest to save this charge from the penalty rule, which the Supreme Judges stated, starts as 'engaged' in all parking charge cases.

To quote from the decisions during the course of the court process in Beavis:

8.1. At the Court of Appeal (these findings were not overturned):
Para 46: ''The terms of use of the car park need, therefore, to provide a disincentive to drivers which will make them tend to comply with the two hour limit. That is afforded by the parking charge of £85. It would not be afforded by a system of imposing a rate per hour according to the time overstayed...''

Para 47: ''...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law [...] should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

8.2. At the Supreme Court:
At para #22, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

Para 32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

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.''

Authorities other than Beavis, better apply to the instant case

9. It is the Defendant's case that the correct authorities in a PDT machine car parking case are not Beavis at all, but instead, due to the above quoted precedent findings, Kemble v Farren is the correct authority regarding this sort of unrecoverable penalty, as well as:

9.1. Spurling v Bradshaw [1956] 1 WLR 461 where Denning LJ held that a person will not be bound by terms of a contract of which he has not received reasonable notice: ''I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it, before the notice could be held to be sufficient'', and

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

9.3. Thornton v Shoe Lane Parking Ltd [1971] QB 163, where it was held that the machine itself constituted the offer. The acceptance was by putting the money into the machine. The ticket was dispensed after the acceptance took place; therefore another unknown/hidden clause that the driver learned about too late, was not incorporated into the contract.


No standing or landowner authority

10. 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 and to form/offer contracts in their own name, and to pursue payment by means of litigation.

No legitimate interest or commercial justification

11. 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 the ordinary and reasonable conduct explained in this defence.

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

Unconscionable sum claimed - double recovery - abuse of process

12. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of its claim by adding purported but unsupported damages, admin, debt collector or other costs, which the Defendant submits have not actually been incurred at all. The claim flows from an alleged (already hugely inflated) contractual parking charge of £100 but the sum on the claim form is more than two times this sum (£247.28). The Defendant avers that this inflation of the considered amount is a gross abuse of process.

12.1. The Claimant is a serial offender on this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. According to Ladak v DRC LocumsUKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.

13. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has failed to disclose any cause of action in the Claim Form, where the sparse cut & paste particulars are embarrassing and give rise to no recognisable claim in law.

14. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee.

15. It is an unfair burden and a complete waste of time for the Defendant to spend hours on their own Witness Statement against a vexatious litigant who then discontinues. Research shows that this Claimant is regularly observed as being in pursuit of default judgments to use as an aggressive form of debt collection, with no intention of paying for or attending the majority of hearings.

16. 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

Coupon-mad

I would add this as it wasn't clear to me, what the issue was at the start:

3. The allegation appears to be that the data recorded by the claimant's Pay & Display Ticket ('PDT') machine is only a partial record of the Vehicle Registration Number ('VRN'). The Defendant has no idea whether this was human error in relaying the wrong information, or a system error in recording it. However, the Claimant at all times had the correct VRN in their database, due to their ANPR images, and was clearly content to use what they knew to be the correct data, in order to obtain the Defendant's data from the DVLA.

AMK077

Thank you for your help Coupon-mad. I've added what you suggested. Do you think my defence is ok to send?

Coupon-mad

Yes - it's long but says what it needs to say.

AMK077

Are there any sections I should remove to reduced the size? Thanks again.

Coupon-mad

6.3. At POPLA appeal stage, the Defendant was sent a list of VRNs and learned that the charge was punishment for entering the last four digits of their VRN. The list shows only 7 VRNs/payments during the period the Defendants vehicle was in the car park, another one of which is not a valid VRN. So in the 15 minute period, over 28% of paying patrons entered incorrect VRNs. No average, circumspect paying driver would deliberately or negligently breach, and in doing so, agree to pay an unconscionable £100 penalty on top of the £1 tariff.

Is this, and the other mention of 28% lower down, true in your case? It rings a bell as something I wrote about a case where that was true...but you can't copy it of course unless your POPLA evidence pack ALSO showed over a quarter of drivers had input a partial VRN.

Was it a £1 tariff?

Don't copy details unless they are correct for your case, please double check everything.

AMK077

Yes it is true to my case and the tariff was £1. I amended what you wrote for a case. Do I need to include the POPLA evidence in my defence email?

Coupon-mad

No you don't attach ANY evidence at this stage. Get that signed/dated and emailed to the CCBCAQ email address.

You need to read up on what to expect when, and how to complete the next form, the DQ, as explained in full, by bargepole in the NEWBIES thread 2nd post.

AMK077

I've received a letter from HM Courts & Tribunals Service:

I acknowledge receipt of your defence. A copy is being served on the claimant (or the claimant's solicitor). The claimant may contact you direct to attempt to resolve any dispute. If the dispute cannot be resolved informally, the claimant will inform the court that he wishes to proceed. The court will then inform you of what will happen.

Where he wishes to proceed, the claimant must contact the court within 28 days after receiving a copy of your defence. After that period has elapsed, the claim will be stayed. The only action the claimant can then take will be to apply to a judge for an order lifting the stay.

Quentin

Standard notification, No need for any action over this letter