SCS Law & Smart Parking

manwyl

Coupon-mad wrote: »

Respond to both at once, and tell them you are aware that their woeful and threatening pre-action letters were specifically criticised on 16th March at Reading Court, in the case C0GF19AQ/2 that they lost with a £500 counter-claim by the successful Defendant.

Tell them you are minded to do the same, a £500 counter-claim, should they proceed.

Thanks guys :T

My draft reply is below -

A similar registration entered alongside a payment for a vehicle not in the car park is highly relevant because Smart Parking are most definitely imposing a penalty for breach of contract, not a parking charge. As in Beavis, the penalty rule is engaged.

I would like to highlight the IAS's opinion on this issue. SCS Law, save your breath/ink if you are about to engage your template reply finger to point out that Smart Parking are BPA members, not IPC. I know that. The BPA have actually fallen well below the level of the IAS/IPC in this regard and missed a trick that any fair Judge would not miss when shown the following annual report where the rival 'IAS' Chief Adjudicator uttered some words of reason:

“Of course, it is incumbent upon the motorist to take reasonable care in entering their details, and when they fail to do so properly very often a charge may be justified. However, where the mistake is so trivial that even someone applying their full attention might not realise - such as entering a '0' instead of a 'O' or a '1' instead of an 'I' - then it is, in my view, unfair to enforce a charge.

As a consequence, I released guidance to all the adjudicators that they should have regard to the nature and extent of such mistakes in determining whether a charge is lawful. I am pleased to say that, since issuing the guidance, there has been a visible reduction in the amount of cases where operators pursue such parking charges and far fewer (justifiably) frustrated motorists as a result.”

This issue clearly meets the definition of "de minimis". I hereby put SCS and Smart Parking on notice for unreasonable costs.

I am aware that your woeful and threatening pre-action letters were specifically criticised on 16th March at Reading Court, in the case C0GF19AQ/2 that you lost with a £500 counter-claim by the successful Defendant. Should you proceed I am thinking of making a similar counter-claim.

I have asked for information on vehicles (with tickets bought) but were not detected by the ANPR cameras before and not received a full and proper answer. I will ask for this again as clearly as possible.

• Was the vehicle with registration ****** in the car park at the time in question i.e. was it detected by the ANPR cameras? YES or NO

• If ****** was detected by the cameras, which other vehicle registrations, with tickets bought, were not detected by the ANPR cameras at the time in question? Compare the tickets bought with the vehicles detected around the time in question and send me ONLY the vehicle registrations that were not detected by the cameras.

[Deleted User]

perhaps with the addition of....

the above information is necessarily required to narrow the issues in dispute, as required by the pre-action protocol. If you fail to provide this information and proceedings are subsequently issued and defended, I reserve the right to show this correspondence to the Court and to seek my costs for unreasonable litigation conduct pursuant to CPR Part 27(1)(g) or as appropriate.

manwyl

They've finally replied and answered if the vehicle was in the car park. The answer was no, it wasn't. So 2 minutes after arriving in the car park they have a record of a ticket being bought for a similar VRN to my own that wasn't in the car park at the time.

We have also established the car park isn't just for Matalan customers so the value of the parking space is limited to the cost of the parking ticket which they can't prove we didn't buy and display.

They are clearly trying to impose a penalty for a minor infringement that resulted in no financial loss or loss of any other kind prior to them ignoring the facts freely available to them and also presented to them by me. They chose to proceed with a foolhardy attempt to extract payment from me and they should foot the cost for their mistake themselves.

https://www.dropbox.com/s/3gu95s4fg8oor27/Image%20%2839%29.jpg?dl=0

Please can you let me know if I need to reply to this letter or just wait for the court proceedings to start? Happy to see them in court and submit my counter claim.

System

Seems it comes down to the one simple question of whether their equipment was correctly maintained to allow 100% compliance (which is what is being inferred) with their terms.

Since the amount claimed is a penalty - though a "good" one - a simple "our equipment doesn't fail" is not good enough. They should be able to show not just the ANPR records but the maintenance records too and whether there were checks (automatic or otherwise) to ensure they were not taking advantage of machine failures.

The second leg, so to speak, is whether enough weight is given to the issue of human error in the matter. There was an instruction there but was it made sufficiently clear that human error could cost £100.

Interesting one for them to lose on this issue.

[Deleted User]

Love a bit of Streetview. I tried to post links, but they don't all seem to work. You can view a perimeter sign and repeaters and the terms (ish) on streetview.

Incidentally there are very few signs with the terms on them, as compared with the number of repeaters...

manwyl

Thanks guys. I have been sent clear photos of the signs and a map showing their positions within the car park.

So the main points are -

1) the PCN is a penalty for a minor mistake that hasn't resulted in any loss of earnings because a ticket was bought. Also, a parking space wasn't denied to a Matalan customer because the car park isn't just for Matalan customers.

2) was their equipment maintained and can they provide evidence of this

Is there anything else I should be focusing on? And do I need to reply to this letter or should I wait for anything that follows after the 14 days have passed?

Many thanks

System

Not certain but AFAIR the actual Smart/Matalan contract ran out either a day before you parked or a day after. They were certainly issuing tickets after the end of their contract so put them to proof the contract had not run out - or that during the run out of the contract they had the authority to issue tickets. They will need to confirm as a statement of truth that the contract was live.

See if Matalan will give you the dates if you explain the situation to them.

Coupon-mad

I would be making it clear that, since they have admitted that the parking firm is trying to issue a penalty for - already explained and rectified - human 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.

You can also add that this is just the type of unfair term that offends against the CPUTRs 2008 and the Consumer Rights Act 2015. And as IamEmanresu suggests, put Smart Parking now to strict proof that the Matalan contract still allowed them to ticket cars on the material date of the event and/or the Notice to Keeper.

You could add that the fact that Matalan had 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.

All of which 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.

State that you will not be replying again but that you are 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 (describe that distress to the family, e.g. insomnia, spending hours sorting this out and replying and researching the law, losing precious family time, headaches, upset & disagreements within the family about whether to just pay the scam to make it go away, etc.).

Describe the stress and distress, set the scene...in case later you want to bung in a counter claim, should they proceed.




* I refuse to call a parking firm 'the innocent party' and never do when quoting the above, I redact the phrase/replace it with claimant.

Umkomaas

a map showing their positions within the car park.

A 'proper' map or a GSV aerial view with crosses here, there and everywhere? Judges haven't been impressed by GSV birds' eyes.

manwyl

Umkomaas wrote: »

A 'proper' map or a GSV aerial view with crosses here, there and everywhere? Judges haven't been impressed by GSV birds' eyes.

A GSV map with crosses here and there - https://www.dropbox.com/sh/np1qw4jv1cmak2y/AACukphHD4fZ4dtLj2rpN4dLa?dl=0

They have also provided the following photos of the signs and PDF's - https://www.dropbox.com/sh/ff5ou5qhepbxpnf/AACOfP1GgbzRCPfEJDmhEyUZa?dl=0

And the times of arrival, leaving and transaction details -
https://www.dropbox.com/sh/3acq0q4dwuoo8e2/AACUwYUFUi9z7kCMRXEFT0ZGa?dl=0

You'll notice the VRN containing GYP on the transaction log is for a ticket bought 2 minutes after our car arrived in the car park. Smart Parking have admitted this transaction was for a VRN that was not in the car park at the time.

I've used GSV to obtain some additional photos of the signs - https://www.dropbox.com/sh/agmm35g5jnaucrx/AAAoGclsOgHrWG8kqYqvogLaa?dl=0

These demonstrate the poor positioning as you approach and enter the car park and the contradictory signs suggesting non-Matalan customers can park there.

IamEmanresu wrote: »

Not certain but AFAIR the actual Smart/Matalan contract ran out either a day before you parked or a day after. They were certainly issuing tickets after the end of their contract so put them to proof the contract had not run out - or that during the run out of the contract they had the authority to issue tickets. They will need to confirm as a statement of truth that the contract was live.

See if Matalan will give you the dates if you explain the situation to them.

Interesting. I have emailed Matalan head office to ask when the contract expired. I'm awaiting a reply and will update here when they do.

I will now spend some time drafting a reply based on the excellent advice above and will post it here shortly. Many thanks to all :T :j