PCN for entering wrong car registration nuber entered

hari

no, but i can get photos. it used to be a free parking but now has this monster excel! i believe it is owned by the council ? i have emailed them but have had nothing back at all. thankyou so much

Umkomaas

If it is a council owned car park, you must push to get confirmation of that from them.

Head up an email to the council 'Subject Access Request and Freedom of Information Request'. Ask for confirmation as to the ownership of the car park, when it was handed over to Excel, dates, conditions of transfer, copies of correspondence with and from Excel and copies of contracts exchanged between the two parties relating to the car park.

hari

is the defence appropriate? if i add in the comments umkomaas mentioned or do i need to start from the begining?
thank you

hari

I will phone council in the morning to see if they will confirm if it is their parking
thankyou

Umkomaas

hari wrote: »

I will phone council in the morning to see if they will confirm if it is their parking
thankyou

You need to follow what I've advised. You can't copy a phone call into any evidence you will need to show a court in due course.

Coupon-mad

Try this but ONLY if it's true, as you said in your draft, that the D was NOT the driver?

hari wrote: »

IN THE COUNTY COURT

CLAIM No: xxxxxxx

Excel [STRIKE]parking[/STRIKE] Parking Services Ltd

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

1.1 The Defendant admits that they were the registered keeper but denies that they were the driver of the vehicle on the material date, and as such, the Defendant cannot be held liable, given the Claimant's persistent and well-documented failure to use or rely on the 'keeper liability' provisions of Schedule 4 of the Protection of Freedoms Act 2012 (the 'POFA').

1.2. It is denied that the driver failed to purchase a parking session for their vehicle and it is further denied that the Defendant, or the driver of the vehicle, entered into any contractual agreement with the Claimant to pay them a further parking charge over and above the small tariff, whether express, implied, or by conduct.

2. The Defendant is having to guess the basis of claim and the alleged breach, due to the sparse Particulars. The facts are that the vehicle [STRIKE] registration XXXX, of which the Defendant is the registered keeper, but not the driver[/STRIKE] was correctly parked on the material date in a marked bay, displaying the driver's paid ticket in good faith. [STRIKE]allocated to company Excel at xxxxx and had a valid permit to be parked at that bay. A[/STRIKE] Much later, it was realised that perhaps, an honest mistake occurred when the driver entered [STRIKE]another[/STRIKE] their own vehicle registration, following the instructions which simply stated that a driver should 'enter your VRN'.

3. The Defendant believes that the terms on/at/adjacent to the Pay & Display Ticket (PDT) machine screen, failed to convey the onerous burden of entering a VRN and positively preyed upon - and, typically for this industry, hoped for - a percentage of drivers making a human error to generate unconscionable fines later. The brief information omitted the vital warning that the correct VRN was an obligation with a concealed pitfall or trap, such that any mistake would be picked up by the ANPR system that would later issue an automated penalty to the registered keeper, long after the paying patron had thrown away the PDT receipt that they relied upon as their proof of payment for inspection.

4. The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring 'open dealing' and the doctrine of good faith. There was a complete lack of any fair warning on the screen: ''are you sure, have you entered your full VRN? A penalty of £100 applies if inaccurate or incomplete numberplates are entered here''.

5. It will be common ground that the correct payment was made and the Claimant's records [STRIKE]should[/STRIKE] will certainly confirm this fact. [STRIKE]and the parking charge notice should be cancelled as no loss was made to Excel parking.[/STRIKE]

6. It will also be common ground that no payment would have possibly been argued to be have been due for vehicle xxxx xxx (the driver's own vehicle VRN) because that car was not in the car park and the Claimant's ANPR records from that day leave them in no doubt as to this fact.

7. The Claimant is put to strict proof of the payments made at the PDT machine(s) in the car park that day and to explain why they retained and remained silent about monies paid for a 'different' vehicle, and failed to reasonably attribute the payment to the only vehicle that had just entered the site but had no matching payment, neglecting to even mention that possibility to the Defendant during the appeals process.

8. Nothing was mentioned on the Parking Charge Notice (PCN) that alerted the Defendant to the possibility of a wrong VRN or how to rectify inaccurate data, if that was indeed the minor issue that caused the payment to be mismatched. The Claimant has a duty under the Data Protection Act to inform data subjects of their data rights, including how to rectify 'inaccurate data' but neglected to even tell the recipient of the PCN that the charge had arisen due to no record of that VRN being typed into the keypad (and to explain how to rectify that supposition in the case of human error/to ask if a wrong VRN could have been entered and what that VRN might be, so they could easily match it without undue cost/time expended). Instead the Claimant alleged in what the Defendant now knows is a template PCN, that no payment was made at all, which the Defendant knew to be wrong and disputed.

9. It is averred that the parking firm knows that drivers who drive more than one car, do sometimes input the wrong VRN and the absence of the other car from the site, added to the timing of the two hour payment, made it reasonable to at least enquire of the appellant during exchange of information at appeal stage, whether the driver made a payment and could it have been for another VRN. The Defendant could then have established the facts from the driver and suggested the VRN that the Claimant would then have known beyond doubt, matched the payment. Instead the Claimant sent a template reply misleadingly suggesting the registered keeper had an obligation to name the driver (this suggestion is false, but was sent no doubt because the Claimant knows they cannot hold non-driving keepers liable under any applicable law).

10. The Particulars of Claim state that the Defendant [STRIKE]xxxx xxxx[/STRIKE] was the registered keeper and/or the driver of the vehicle xxxxxxx. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

[STRIKE]4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.[/STRIKE]

11. It is denied that the Claimant can hold a registered keeper liable. Since their Notices fail to comply with the POFA, this Claimant has no cause of action and is already well aware - from a June 2017 Appeal case at Manchester in Excel v Smith Claim No. C0DP9C4E/M17X062, where the Judge admonished this Claimant - that any incorrect citation of CPS Ltd v AJH Films Ltd against individuals where no keeper/driver agency relationship can exist, is 'improper'.

12. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them at the PDT machine, where the penalty charge is conspicuous by its absence in the (large font) listed tariffs or in any brief uncluttered sign. [STRIKE]They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom. [/STRIKE]

[STRIKE]6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract[/STRIKE].

13. The Claimant may 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 fact that the innocent conduct of the driver (who was not the Defendant, unlike in Beavis where the contract was not denied) caused no issues to other drivers, took up no valuable parking space that the driver was not entitled to use, and the sum for parking was in fact, paid.

13.1 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 the ordinary and reasonable conduct explained in this defence. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished with no compelling overriding reason to disengage this charge from the penalty rule, which the Supreme Judges stated, is certainly 'engaged' in all parking charge cases.

14. To quote from the decisions in Beavis, firstly para 47 from the Court of Appeal stage, which was not overturned or criticised: ''...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law [...] should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

14.1. At the Supreme Court:

(i) At para #22, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''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.''

(ii) Para 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 ParkingEye} [...] 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.''

(iii) 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''.

(iv) 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.''

15. It is asserted that authorities other than Beavis, better apply to the instant case. It is the Defendant's position that the correct authorities in a PDT machine car parking case are not Beavis at all, but instead, due to the above quoted precedent findings, Kemble v Farren is the correct authority regarding this sort of of unrecoverable penalty, as well as:

(i). Spurling v Bradshaw [1956] 1 WLR 461 where Denning LJ held that a person will not be bound by terms of a contract of which he has not received reasonable notice: ''I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it, before the notice could be held to be sufficient'', and

(ii). Jolley v Carmel Ltd [2000] 2 –EGLR -154, where it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach, and

(iii). Thornton v Shoe Lane Parking Ltd [1971] QB 163, where it was held that the machine itself constituted the offer. The acceptance was by putting the money into the machine. The ticket was dispensed after the acceptance took place; therefore another unknown/hidden clause that the driver learned about too late, was not incorporated into the contract.

[STRIKE]7[/STRIKE]. 16. Further and in the alternative, the Claimant is put to strict proof that it has sufficient [STRIKE]prorpietary[/STRIKE] proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

[STRIKE]8[/STRIKE] 17. The [STRIKE]Protection of Freedoms Act 2012[/STRIKE], POFA Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

18. 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.

[STRIKE]I believe[/STRIKE] The Defendant believes the facts contained in this Defence are true.


Name


Signature


Date

hari

wow this is brilliant, you have no idea how happy i am cant thank you enough coupon mad and all of you that has helped me along the way. been struggling with this for ages. yes its true keeper not the driver.thank you

Coupon-mad

No problem, happy to help with this first stage. Make sure you add your friend/the driver's WRONG VRN that they input, where I put xxx in blue.

You do know that defence is not your only job, and what happens when? See the NEWBIES thread again.

hari

Thank you so much. i know a lot of efort and time has gone into this and you help so many like me .

hari

Hi again, the keeper was not the driver and a questionaire has arrived . the keeper does not want to take time off to go to court is there any other way this can carry on with a good ending? or should the questionnaire still be filled in and just hope it will be thrown out? thankyou