SCS Law & Smart Parking

[Deleted User]

I understand the more arguments and angles the merrier but only if it won't hinder my case.

I disagree with this. In fact, i'd go so far as to argue the "everything but the kitchen sink" approach risks losing the really good points with the average/standard fare. You want the killer points to stand out in such a way that actually the Claimant has to think whether they have a proper case at all.

I appreciate that there may be an ANPR issue / data protection, but the winning point must surely be that (i) you paid (and they agree you probably did) and (ii) that the amount sought will, on balance, amount to a penalty.

Human Factors studies show the average human makes c. 1 mistake per hour, even if the machines were working is it really proportionate to seek a massive penalty for a typo? The system could be designed, as you know, not to accept any payment/registration not linked to a vehicle recorded as having entered the carpark.

Finally, your section about Matalan no longer having the contract should both make clear two issues:
(1) that there are doubts as to whether the contract was still "live" when the ticket was issued; and
(2) that the contract had definitely expired by the date court proceedings were issued. Since the contracts are commonly also the authority upon which the PPC derive standing to bring a claim, it follows that any such authority was expressly withdrawn.

System

(2) that the contract had definitely expired by the date court proceedings were issued. Since the contracts are commonly also the authority upon which the PPC derive standing to bring a claim, it follows that any such authority was expressly withdrawn.

A powerful argument which the judge will have to have his/her thinking cap on for.

You might add that

(c) Even if the contract was live (which has to be proven) Matalan had put Smart under notice and any actions by Smart after that notice had been given was duplicitous.

manwyl

Thank you again to everyone. Below is my amended defence. I have highlighted the changes in red. I will submit this tomorrow morning. :T

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 ___.

The Defendant denies any liability for the entirety of the claim for each of the following reasons:

1. A parking ticket was paid for and displayed in the car. The vehicle registration number was typed incorrectly due to a temporary technical issue with the ticket machine keypad. Smart Parking have admitted they received payment for a similar vehicle registration number to the Defendant’s own but this vehicle wasn’t in the car park at the time. Manual cross referencing by Smart Parking has identified the payment before proceedings were issued therefore no loss was made by them.

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.

2. 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. Smart Parking 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.

3. 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. The contract had definitely expired by the date court proceedings were issued. Since the contracts are commonly also the authority upon which Smart Parking derive standing to bring a claim, it follows that any such authority was expressly withdrawn.

3.1. 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.

3.2. 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. Given these facts, this charge is the epitome of an extortionate, punitive and unrecoverable penalty.

3.3. 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.

3.4. Even if the contract was live (which has to be proven) Matalan had put Smart under notice and any actions by Smart after that notice had been given was duplicitous.

4. 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.

5. 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.

6. 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.

7. 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.

7.1 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.

7.2 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'

8. 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 the Defendant submits have not actually been incurred by the Claimant.

8.1. 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. The Defendant puts 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.

8.2. 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.

9. 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.

The Defendant confirms that the facts in this defence are true to the best of the Defendant’s knowledge and belief.

Name/signature

manwyl

The defence has been submitted online. I was restricted to 122 lines (half lines judging by the length of them!). I was able to remove all spaces between paragraphs and managed to squeeze it all in.

I'll wait for the court's next move and update on here when I hear anything.

Thanks again for everyone's help and input :T :T :T :beer:

KeithP

manwyl wrote: »

The defence has been submitted online. I was restricted to 122 lines (half lines judging by the length of them!). I was able to remove all spaces between paragraphs and managed to squeeze it all in.

Why on earth did you allow yourself to be restricted like that?

Everyone sends their Defence by email.

It is clearly stated in the NEWBIES thread:

Do NOT put anything in the 'Defence and Counterclaim' text box, not even a full stop.

This post tells you why:
forums.moneysavingexpert.com/showpost.php?p=73786676&postcount=8


And just last Saturday you were advised in post #139 of your very own thread:

Coupon-mad wrote: »

When you have your final draft, print & sign & date the defence, then scan the signed version as a PDF and email it to the CCBCAQ email address this weekend.

It might be a good idea to send a properly formatted Defence as an email attachment either today or tomorrow and ring the CCBC early on Monday and ask them to discard the online version and process the emailed pdf Defence instead.
No idea whether that'll work though.

manwyl

The Newbies thread has several links to different threads within it. I haven't been able to find the thread you've linked to in the short time I have free this afternoon. Please provide a link to the thread it came from. It is very easy to read something and assume you've understood it correctly only for another link/thread elsewhere to state something else. Quite often I have received advice from different members which contradict each other. This is an unfamiliar process to me and as such it is easy to put a foot wrong. One sentence in a post made a week ago is easily forgotten. I'm encouraged to follow the newbies thread and get it submitted. The Acknowledgement of Service was done online so it made sense to continue as such.

If a judge is so easily swayed by an inadequate system provided by HM Courts & Tribunals Service then it's up to them to make sure something is done about it. If it ends my cause then I must have built my case upon the sand in the first place for it to make such a difference.

KeithP

This is the information you asked for...

This is the link from NEWBIES post #2 to Bargepole's walkthrough:

forums.moneysavingexpert.com/showthread.php?t=5546325

Point 2. in post #1 in that thread contains:

Do NOT put anything in the 'Defence and Counterclaim' text box, not even a full stop.

Point 3. in post #1 in that thread talks about formatting and contains:

I recommend printing and posting (registered) to Northampton, trying to fit it in the online box destroys the formatting, and makes it hard for the Judge to read.

OK, that mentions registered post rather than email but it was written eighteen months ago. It does however state that using the online box is definitely not the thing to do.

Post #7 on that thread says:

Another option is email:
https://courttribunalfinder.service.gov.uk/courts/county-court-business-centre-ccbc

Claim responses & directions: ccbcaq@hmcts.gsi.gov.uk

I believe you get an acknowledgement, so you can prove it was received.
Add the claim number to the email subject line, and also the document name.

Please note that that email address has recently changed to CCBCAQ@Justice.gov.uk


Anyway, what's done is done.
I would still suggest you consider the last two sentences in my previous post though.

manwyl

We've received the Small Claims Directions Questionnaire. It has been completed following the newbies guidelines. I shall post a copy tomorrow to Smart's solicitors, post the original to Northampton and keep a copy for myself. I shall post them via first class and get a receipt as proof of posting.

KeithP

Send the CCBC's copy of your Directions Questionnaire as a pdf to the same email address that you used when you sent them your Defence.

Hint: that email address is clearly spelt out on the post immediately before your latest post.

manwyl

Notice of Allocation to the Small Claims Track has now been received. Court date of the 2nd October but the 22nd August has been set as the deadline for submitting documents and the 5th September for witness statements.

The timing stinks because were just about to go on holiday for two weeks which doesn't leave much time. I've only got until Friday (3 days) to try and meet the 22nd August deadline for documents before we're away.

I've read through the posts but I'm unsure what to include. It's so easy to make a mistake at this stage.

The defence which was filed a couple of months ago covers all the points so I'm thinking I should include -

copies of the letters from SCS and my replies
the photos showing the date and time of the vehicle entering and leaving the car park
photos of the signs and map showing their positions within the car park
photo of the main Ts&Cs
photos of the signs stating "Refunds for Matalan customers"
the transaction report showing the payment (made 2 minutes after entering) for a vehicle not in the car park

Then comes the difficult part. Based on my defence in the previous replies, should I also provide copies of anything to do with the Beavis or Cargius cases?

Or is there anything else that I'm likely to have to rely on?

Many thanks