Entered Wrong reg on App. messed up my appeal now.

Redx

post the EXACT "DATE OF ISSUE" as detailed on the claim form, for the DOI box


also post the full POC details and the costs breakdown below as well as the DOI date


use a laptop, not a mobile phone to deal with this


read the BARGEPOLE and LOC123 threads and walkthroughs of the post #2 including links


if you have already sent SAR to both, then thats on the back burner for now


follow the process what KeithP said above and dont miss the MCOL defence date for your emailed defence pdf attachment


whenever you need to ask something, look through that post #2 FIRST


when you have a draft defence (start with the BARGEPOLE examples etc) , then and only then post it below , so people can look at all the details and help, advise and criticise


dont lok at old posts or old defences , stick to anything in the last 6 months

Jamesrb

I have managed to access the MCOL guidelines to Acknowledge the service. I have created an account, followed all the steps as highlighted and have Acknowledged the Service.
I will now prepare a defence which I will share here once ive managed to piece something together (which may take some time, im not great with stuff like this)
I will focus my defence on the following:
Paid for my stay
The App used was at fault by storing old VRN data
I sent a rectification notice to Brittannia to correct the incorrect VRN's which is currently breaching GDPR which was ignored
I have an ongoing ICO complaint with Britannia which had specifically stated I was barring them from processing my personal information.
Any other tips on what to include would be welcome.
Ive had a read through on how the defence should be structured so I will have a go at that when I write it all up.
I will hopefully be able to share something shortly.....hopefully
Thanks once again for all the help

Umkomaas

Ive had a read through on how the defence should be structured so I will have a go at that when I write it all up.

Have you read this advice from trusted contributor bargepole who is legally qualified and a successful lay rep at private parking court cases? It may save you some time working through some of the older, lengthy defences.

https://forums.moneysavingexpert.com/showpost.php?p=74674865&postcount=24

Jamesrb

Yeah, although a lot isn't linked to my case I will be using the similar format to structure mine. I see how it needs to be clear, concise and to the point. I will try my best to replicate the style. Hard to know where to start. Will see how I go.

Jamesrb

OK, heres my attempt. Majority of it has been copied from Newbies thread 2 on the example linked by Coupon-mad which all just seemed too brilliant to not use.
I have added and amended a few points to fit to my case, in particular 4.1, 4.5.2, 5.2 and 9.2 so would appreciate any input, suggestions, feedback, changes.
Edit: Notepad copy and paste has removed the double spacing. Looks a lot smarter on Word
Thanks
James


IN THE COUNTY COURT
CLAIM No: xxxxxxx
　
BETWEEN:
BRITANNIA PARKING LTD (Claimant)
-and-
ME (Defendant)


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 driver of the vehicle in question at the time of the alleged incident but is not the registered Keeper

2.1 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 Plymouth – Charles Cross Car Park
2.2 The PCN stated the contravention as ‘Failed to display a valid P&D ticket or Permit’ 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 but also due to an error on the cashless system ‘PayByPhone’ app not caused by the consumer.
2.3 In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavors to comply with contractual terms, should not be penalised for breach.
3. 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, in at least as large lettering as the tariffs shown at the machine (both the machine instructions and the Pay By Phone app were silent about any fine).
d. 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;
f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice.
　
Primary defence - payment was made but the system hid a concealed pitfall or trap
4. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel. Payment for parking was made via telephone using a cashless system provided by ‘PayByPhone’ mobile app
4.1. Paying by phone for parking is indisputably a 'distance contract' - a remote mobile phone app transaction involving the exchange of location reference and payment amount - and under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, such a contract requires certain information to be supplied in advance. The app used by the Claimant failed to comply with the statute and this directly led to the system failure regarding the VRN data.
4.2. The Defendant followed the PayByPhone instructions exactly as shown on the signage at the payment machine. The payment channel did not indicate any failure to make payment and responded that payment had been made
4.3. The service makes no provision to print a ticket to display, or a receipt so that a driver could check the details in a tangible format. The Defendant reasonably expected that the payment was made appropriately and had no reason to question the confirmation text message relied upon
4.4. It was only when a PCN was issued, that the Defendant knew (too late) of what appeared to be a minor data problem caused by the Claimant's system itself. The app used by the Claimant had carried forward stored data without the Defendant's consent, and the app wrongly used the VRN relating to a completely different parking session/location
4.5. No prominent warning had been displayed by the app system and it is averred that such unauthorised and potentially onerous data storage by the Claimant's agent, the app provider PayByPhone, causes far more potential detriment to a consumer in any private car park than (presumably) the aim of minor time saved for people using the same car every day for months/years.
4.5.1. Further, it is averred that a distance contractual payment where the wrong VRN data can be so easily assigned against the payment made, unbeknown to the driver yet with the risk of a penalty becoming extremely high over even a short period of time in a typical two car household, offends against the requirements of the Data Protection Act 1998 (the DPA), which was the statute in place at the time of the parking event. Storage of a VRN as the 'default' data is both untimely, excessive and disproportionate, and thus breaches the DPA's data protection principles
4.5.2. 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 issued the ticket to
4.5.3. 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, such that the dangerous 'default to the old VRN' presumption and associated consumer risk is eliminated from the app when their locations codes are input.
4.6. 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.
4.7. The 'automated decision' of the Claimant's chosen payment app to decide to set the registered car 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. The Defendant pointed out the data processing/storage error, as soon as the automatic PCN arrived. The Defendant sent a written appeal explaining that there are two cars in the household and the system failed by assuming a default VRN from an old parking session, with no warning to alert the driver to the risk of a fine if they 'failed' to notice the app's inaccurate data.
5.1. Thus, given the Defendant's appeal and the ANPR camera secondary data stream, which proved which car of the two, 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, and their two data streams (ANPR and app) conflict, and this data inaccuracy could have been easily rectified at no cost.
5.2 The claimant acknowledged that there was a simple error made when after appeal by the defendant there was an offer of a discount to the PCN to cover costs which was more conducive with the actual costs incurred and then increased it again to a 3 figure sum despite this having no legitimate interest, and despite the fact that parking operators cannot simply 'punish' mistakes and profit from them, because - as was clearly established in the entirely different 'ParkingEye v Beavis' case - that would fall foul of the penalty rule.
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.
6.2.4. The misleading omissions/conduct of the trader and/or their agent, caused the Defendant to make a transactional decision that would not otherwise have been taken, had the 'default VRN' not been hidden among the data presented with no 'Red Hand Rule' style warning giving appropriate prominence to the onerous risk. Since the Defendant followed all instructions and was never asked to input the VRN, the Defendant cannot be liable for that inaccuracy.

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 on a phone app that stores data contrary to the DPA (and now the GDPR).

9.1. The Defendant avers that this is a significant and all-too-common issue requiring investigation by the Information Commissioner's Office (ICO) and to this end, a formal complaint had been lodged about the untimely, excessive and disproportionate storage of the Defendant's personal data (and VRNs are personal data, according to the ICO) which has resulted in such a significant imbalance in the Defendant's consumer rights
9.2 The Claimant was informed that whilst the ICO complaint was being investigated the defendant wished to exercise their right to request 'restriction of the processing' of their personal data during this period from contesting the data accuracy, while Britannia Parking, its phone payment agent check it, in accordance with Article 18 of the GDPR yet the claimant has gone against this request by carrying out these court proceedings
9.3. 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.

James
Signature
Date

Jamesrb

Any helpers/pro's around to offer any feedback? Does the detail in my last post seem ok?
Thanks

Jamesrb

No takers? Anyone?

nosferatu1001

IF youve noticed, it sa bit busy

If youre happy, go for it.

Jamesrb

IF you’re too busy or have no input then ignore my post. That’s not helpful to me in the slightest. Asking the pro’s for feedback. If you have nothing to add then i’ll happily wait for anyone who has constructive input.

Coupon-mad

Jamesrb wrote: »

Any helpers/pro's around to offer any feedback? Does the detail in my last post seem ok?
Thanks

Looks good to file as a scanned/signed & dated version to the CCBCAQ email.

Can't fault it, as your case is similar to the example defence you found and has specific issues worth including (e.g. the distance contract regs, because in this case, it was). The defence is longer than some but says what you need to say, IMHO.