SCS Law & Smart Parking

manwyl

Here is the draft reply for now. It pretty much wrote itself as the gold quotes above describe the situation accurately. I will give Matalan head office a few more days to reply in case I want to edit/add that part to it. Please feel free to comment or make suggestions. Many thanks all -

Dear Sirs,

I am in receipt of your letter dated **** ***** ****.

Since you have admitted that Smart Parking are trying to issue a penalty for - already explained and rectified - human/machine error (no more and no less) this is clearly exactly the sort of unrecoverable penalty that the Supreme Court Judges had in mind in ParkingEye Ltd v Beavis [2015] UKSC 67 when they discussed the fact that Lord Dunedin's four tests for a penalty still had application in ordinary consumer contract cases, such as this one.

In Beavis it was held:

at 22: ''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.''

and at 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 the {claimant}* in the enforcement of the primary obligation. The {claimant}* can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. 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.''

Clearly, Smart Parking cannot possibly 'justify' the charge and (unlike the facts that swayed the Judges in the completely different Beavis case) have no 'legitimate interest' excuse in pursuing a sum that is one hundred times the parking tariff already paid by the driver. This is clearly unconscionable and out of all proportion to any 'justification' Smart Parking think they might have.

This is just the type of unfair term that offends against the CPUTRs 2008 and the Consumer Rights Act 2015. All of this reinforces the contention that this is an extravagant penalty with none of the justification behind it that would cause it to be upheld under consumer law.

Please now provide strict proof that Smart Parking had a contract with Matalan which still allowed them to ticket cars on the date of the event and/or the Notice to Keeper.

The fact that Matalan has ended Smart Parking's contract, suggests that charges being vexatiously pursued now are not commercially justified at all, but are purely speculative enforcement, indeed ''revenge claims'' like Civil Enforcement infamously did against Co-op shoppers and employees after the Co-op kicked them out.

I will not be replying again but I will be keeping a record of this unwarranted harassment in pursuit of a meritless 'parking charge' that has none of the elements of legitimate interest that saved the Beavis case charge from falling foul of the penalty rule. The continued unfair demands are causing significant distress (distress to my family, insomnia, spending hours researching the law and replying to your letters, losing precious family time, upset & disagreements within the family about whether to just pay the scam to make it go away).

manwyl

I'll get this in the post today because the 14 days isn't far off. I'll update again if I hear back from Matalan head office or get any more letters from SCS. Many thanks to everyone for all your help again :T

[Deleted User]

@Manwyl do request and make sure they bring a complete (unredacted) copy of all registration numbers to Court. It is very unattractive for them to argue that you should be charged the additional sums they seek when they have clear evidence of payment - and very probably unreasonable litigation conduct.

manwyl

Matalan have replied to say the contract expired "around the 11th March". 1 week after the alleged event.

Umkomaas

manwyl wrote: »

Matalan have replied to say the contract expired "around the 11th March". 1 week after the alleged event.

So, presumably, they have the contractual authority to order a cancellation.

Why not?

[Deleted User]

This suggests it may well have been march
http://forums.pepipoo.com/index.php?showtopic=112652

But interestingly, this suggests it was February (at least in Portsmouth)
https://www.google.com/amp/s/www.portsmouth.co.uk/news/people/shoppers-tell-of-their-anger-at-being-given-85-parking-fines-1-7923179/amp#ampshare=https://www.portsmouth.co.uk/news/people/shoppers-tell-of-their-anger-at-being-given-85-parking-fines-1-7923179
It would seem odd for the contracts not to have been renewed/cancelled at the same time...

Coupon-mad

manwyl wrote: »

Matalan have replied to say the contract expired "around the 11th March". 1 week after the alleged event.

So bang goes their 'legitimate interest'; the thing that saved the charge in Beavis from falling foul of the penalty rule.

[Deleted User]

Hmmm... an interesting thought.

Standard contracts *usually* offer up terms as follows, so these are assumptions:

1. the PPC, smart was able to issue pay & display tickets and keep the proceeds;
2. If there was a failure to comply with the parking contract they could issue PCNs; and
3. the PPC could commence court proceedings for recovery of payment.

The contract with Matalan was defined within the period. The o/p (Smart say) was in breach of contract during the period in which they were entitled to issue PCNs. That is obviously disputed. But, as I see it, the following question now arises:

If the contract with Matalan had been terminated prior to commencement of court proceedings do Smart have any entitlement (at all) to pursue the Defendant as the contract that empowered them to undertake enforcement action on behalf of the landowner is now ended and where it is not disputed that Smart had the cash? To paraphrase the Black Eyed Peas - Where is the loss?

To address this, they would need a 'run off agreement' permitting them to complete their recovery in relation to outstanding PCNs. In the absence of that, they may have a problem. I also say this because all Matalan parking signs said at the top of them "Matalan Pay & Display Customer Parking" so arguably the contract the consumer thought he was making was with the store not with Smart at all...

Castle

Johnersh wrote: »

I also say this because all Matalan parking signs said at the top of them "Matalan Pay & Display Customer Parking" so arguably the contract the consumer thought he was making was with the store not with Smart at all...

Indeed; I bet that Smart are not paying business rates on the car park as an occupier and the Vat on the pay and display tickets is being accounted for by Matalan.

manwyl

Another reply received from SCS -

https://www.dropbox.com/sh/tlo3kcuyrf87bgf/AADaT4_KWOcpqpy6zSZ2ujITa?dl=0

Another 14 days apparently.....

One thing I've noticed whilst reviewing what they've sent previously is they have sent a pdf of a sign claiming the car park is for matalan customers only -

https://www.dropbox.com/s/qilms8tug8q66jg/Sign%20Warning.jpg?dl=0

But there's no indication on the map where this sign lived or a real photograph of it. My guess is they slipped this one in by "mistake".

Happy to tell them to go ahead. Permission to call their bluff or just ignore them now?