SCS Law & Smart Parking

Umkomaas

.... but you can certainly run an argument provided the additional fee is paid and the counterclaim is lodged at the same time as the defence.

Which will either drag them to court, or a default judgment in the OP's favour if they don't defend, or they will pay the OP's counterclaim if they decide to withdraw. Not quite 'checkmate', but 'check' will flush them out, one way or the other. The trap is set ......?

Castle

Smart Parking's accounts for the year ended 30th June 2017 confirmed that their Matalan contract ended on 4th March 2017.

[Deleted User]

Smart Parking's accounts for the year ended 31st March 2017 confirmed that their Matalan contract ended on 4th March 2017.

This is informative, but doesn't necessarily mean that they cannot enforce cases that nicked in before the deadline (although it might do). If memory serves the issue has been explored earlier in this lengthy thread. The point is well worth making to see if they are permitted to pursue this given that proceedings were issued after the withdrawal rather than immediately prior to it, which is how I would address cases/disputed matters in "run off"

Castle

According to the ANPR photos provided in post 91, the car parked on the 4th March, the last day of the contract.

manwyl

Johnersh wrote: »

To misquote the late, great, Michael Hutchence and INXS:

Simplify
Simplify for me
Simplify
Simplify when you plead...

There's A LOT of boilerplate guff in that defence. Here you've got an argument thats about as strong as it gets - you paid didn't you? In such circumstances, were it my case, I would abandon a technical POFA defence and go with something much clearer (and easier to argue). Others may disagree, but I think this is a quite different case to the norm.

You need to draft this as a direct response to the particulars (currently ignored). If the PoC don't tell the story, then you should. In particular you need to rely on the pre-action admission that they received payment for a car not in the car park, with a bloody similar registration to yours. This leads you neatly to the misquoted Black Eyed Peas defence "where is the loss?"

Try again and we can play with that. Clear out a lot of the case references, but leave in Beavis - the point is that the penalty rule was engaged (but no penalty found) in that case, here they want £100 for a typo that manual cross referencing has identified even before proceedings were issued. It's unconscionable.

The place for oodles of case references (if needed) is your skelly not the defence - explain your case, not everyone else's!

That is all. Apologies if those songs now go round your head for the rest of the day

Thank you all for your replies. I have had another stab at the defence. Again, please ignore the numbers on the paragraphs. I'll tidy this up at the end

In the County Court Business Centre
Claim Number: ___

Between:

Smart Parking Limited v ___

Defence

I am ___, the defendant in this matter and registered keeper of vehicle ___.

I deny I am liable for the entirety of the claim for each of the following reasons:

1. A parking ticket was paid for and displayed in the car. A mistyped but similar vehicle registration number meant Smart Parking received payment for a vehicle that wasn’t in the car park at the time. Manual cross referencing by Smart Parking has identified the payment before proceedings were issued.

1.1 The car park at Matalan Cheltenham wasn’t just for Matalan customers. Signs on display within the car park stated “Refunds for Matalan Customers” rather than “Parking for Matalan Customers Only”. This means both customers and non-customers were entitled to park there. Therefore there is no additional value of the space over and above the value of the pay and display ticket bought.

6. No locus standi - in order to issue and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. SCS Law has taken no steps to provide evidence that such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof.

6.1 Smart Parking’s contract with Matalan ended on the 4th March. The same day of the alleged incident. Are Smart Parking able to pursue this given that proceedings were issued after the withdrawal of the contract?

5. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

8. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When Smart Parking, all too often at this location, unfairly ticket a patron of Matalan, any commercial justification in the form of support by Matalan for such unfair ticketing is absent. More to the point, Smart's contract was ended across the UK several months ago, so this case is clearly a 'revenge claim' and has no 'legitimate interest' excuse in pursuing it to court, distinguishing it from Beavis.

9. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

10. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

11.1 If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis. On this occasion, the parking fee was paid and Smart Parking are able to marry up the payment with my vehicle despite the incorrect registration having been entered.

11.2 Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

11.3 At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.

Unconscionable and unrecoverable inflation of the 'parking charge'

14. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which I submit have not actually been incurred by the Claimant.

14.1. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Smart Parking Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. I put the Claimant to strict proof to the contrary because the in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

15. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. In Beavis, only the parking charge itself (£85) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a pre-set sum dressed up as a fee or charge agreed in contract. This was already significantly over and above the very minimal costs of operating an automated ticketing regime, and it was held that the claim could not have been pleaded as damages, and would have failed.

15.1. Similarly, in Somerfield a £75 parking charge was not held to be a penalty but a sum mentioned in the harassing letters of double that amount, almost certainly would be.

16. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I confirm that the facts in this defence are true to the best of my knowledge and belief.

Name/signature

Coupon-mad

6.1 Smart Parking's contract with Matalan ended on the 4th March. The same day of the alleged incident. Are Smart Parking able to pursue this given that proceedings were issued after the withdrawal of the contract?

You do not ask questions in a defence. So maybe:

1 Smart Parking's contract with Matalan ended on the 4th March, as confirmed by this Claimant's own (publicly-available) accounts for the year ended 30th June 2017. This contract for 'parking management' had ended on the same day of the alleged incident.

1.1. It is averred that Smart Parking knew, or should have known, that the contract across all Matalan store locations had terminated (reported in the press as being in the main part, due to their aggressive ticketing of customers), and as such, this Claimant can offer the court no 'legitimate interest' excuse to save this punitive charge from the penalty rule.

1.2. In this regard, ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case) is distinguished and indeed positively supports this defence. With no commercial justification in the form of landowner/retailer authority to pursue customers of Matalan, the charge is unconscionable and indeed this has all the hallmarks of a 'revenge claim' against Matalan customers after this Claimant lost the contract. Given these facts, this charge is the epitome of an extortionate, punitive and unrecoverable penalty.

1.3. It is averred that the Claimant must have been under notice that the contract was ending that day, so the penalty rule remains engaged, as it was initially in the Beavis case. Further, it is averred that as the Matalan contract had ended that day and was not continuing/being renewed, it was no longer current at the actual time of the parking event and the Claimant is put to strict proof to the contrary.

Castle

Link to the Accounts for Smart Parking:-
https://beta.companieshouse.gov.uk/company/SC138255/filing-history


(NB, they are for the year ended 30th June 2017; not 31st March 2017 as previously stated).

manwyl

Coupon-mad wrote: »

You do not ask questions in a defence. So maybe:

Thanks for this. Much better than I had managed I have amended my defence with it.

Johnersh wrote: »

Ps. Happy to suggest formatting on a counterclaim, but I don't think the original request for details and letter to you constitutes a data breach.

You may also struggle to show your recent distress is beyond any normal debt worry to the extent that damages should be awarded, but you can certainly run an argument provided the additional fee is paid and the counterclaim is lodged at the same time as the defence.

Regarding a counterclaim - I'm uncertain of the process but I am attracted by the prospect of them being unable to pull out scot free and get away with wasting everyone's time.

Thank you to Jonersh for the kind offer – I will probably need hand holding through this part to ensure I get it right. Where do we start?

[Deleted User]

Ok, so the defence should now be called defence and counterclaim pursuant to part 20 CPR

On the front where you list the claimant and defendant parties add after each the alternative status eg. claimant/part 20 defendant.

Once you complete the stuff about the defence you need a subheading
Counterclaim
In which you set out the case you pursue against the claimant. I would begin with
The defendant/part 20 claimant brings a claim against the claimant/part 20 defendant for xxxxxx thereafter adopting part 20 claimant to refer to yourself.

An additional fee is payable.

Remember you need to set out the damage that you claim and the costs.
Subheadings are:
* Particulars of counterclaim
* Loss and Damage
* Prayer

The last simply stating and the part 20 claimant claims £ xxxx plus interest, court fees and such recoverable costs permitted, pursuant to CPR part 27.

I don't know what your case is, exactly, or what amount you claim. For that reason, you need to draft it. Remember this will have a statement of truth on the bottom (yours not mine).

Formatting and navigating the rules is the easy bit....

[Deleted User]

PS. Where you have said you were not shopping in Matalan, I consider it ill-advised to refer to yourself as a patron. I would also (sorry CM) omit her wording about revenge ticketing. More likely they're just a bit rubbish: inflammatory doesnt necessarily help yield results.

I'd delete paras 8 and 15 (the former for repetition and the latter adds little) then renumber the lot sequentially. Make it flow - put all your Beavis paragraphs together and, above all else, make sure it replies to the allegations in the particulars (however few).