Sip Car Parks County Court Claim for 4 PCN

GetSomeAdvice

I have received a county court claim amounting to £700 (£640 to sip and £60 to county court) for 4 PCN.
I have been on the newbie thread and in the process of acknowledging the county court claim online as advised but thought I would post for some advise with regards to where I stand and grounds for defence.

I have a good parking history (over 30 times with emailed receipts as proof) on the site in question and every time I have parked onsite I used the “pay by phone” app to make payment.
On the 4 occasions that I have not paid as the application could not load or kept crashing or confirm the payment.I would genuinely have no reason to park without paying.

Please also note that I have been to the site recently and they have taken down the sign that showed the "pay by phone" parking site code and various other info but his is still available on google street view. They have also changed the pricing.

In November 2017, I received Notices in the post, claiming £125 for two PCN and £115 for the other 2 PCN, that I subsequently responded to for the penalties but all in a single letter. I offered to make payment of £6.30 as that is the cost of the parking for a 24 hour period through the app for the 4 occasions but returned the cheques with "Rejected" across them.
Their letter also that "No further direct correspondence is required, or will be entered into regarding this PCN" so I assumed that they were not ready to come to any agreement about the charges.

Fast forward to April 2018, they sent me a "Letter before court action".
It is so ambiguous with the cost calculations amounting to £640 (£100 per PCN and £60 cost out of thin air). I ignored the letter.

So this week, I received the county court claim.
I was thinking of a defence along the lines of unsubstantiated losses, costs that they have briefly detailed and their failure to provide to acknowledge failings by "Pay by phone" app to provide a reliable means of processing payment at the time.(trying to get update history of app that I provided at the time I responded to letters)
I know that they also had coin machines at the time but I have always paid by app and never by coin machine. (You can no longer pay for parking for this site using the app)

Please advise.

Coupon-mad

unsubstantiated losses,

Not a good point of defence as they are not seeking a loss, but a contractual 'charge'.

Searching the forum is always the answer. I searched for defence app and found this one:

https://forums.moneysavingexpert.com/discussion/comment/74239632#Comment_74239632

Get the idea of what you can say? Also look at all the advice in post #2 of the NEWBIES thread.

System

On the 4 occasions that I have not paid as the application could not load or kept crashing or confirm the payment.I would genuinely have no reason to park without paying.

Look for "frustration" of contract.

Also the fact you are a regular payer should also be put into any defence to show you are not a chiseler - just someone that is "frustrated" by the poor payment mechanisms on site.

Also what do the signs say about paying where there is a failure as that will have a slight bearing too.

GetSomeAdvice

Thanks IamEmanresu,

I went to the site yesterday.
They have taken down the old !!!8220;pay by phone!!!8221; signs. This site is no longer available on the pay by phone app. The have also installed new machines.(old red coloured ones not there)
I have taken some pictures and also relied on google maps (April 2017) and pic uploaded of site (Jan 2018) to show what it looked like before as it has changed.

They also do not own the land (found title info from land registry). What rights do they have to demand payment? Is there similar defence that I can use.

GetSomeAdvice

I have also realised after going through my emailed receipts that on 3 of these days I managed to pay when I got on to the systems but most likely after they had issued the PCNs.

Coupon-mad

What rights do they have to demand payment?

Anyone can sue anyone.

Is there similar defence that I can use.

I already showed you one.

GetSomeAdvice

Hello,

Thanks for all the previous responses. I have now put a defence together for submission tomorrow 08/08/2018 by 4 pm.
I think It is quite long.
All advise is very welcome.

1. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of alleged incident.

2. It is believed as a matter of common ground that the claim relates to purported debt arising from the issue of Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at Campbell Street, Leicester on four separate occasions between XX/XX/2017 and XX/XX/2017.

3. The Defendant has prepared these submissions at this stage to assist the Court.
Please note that no further documentation has been provided by the Claimant even after stating in a letter dated the XX XX 2018, that !!!8220;A legal pack will be sent with information that will be relied upon in court!!!8221;. Therefore, the Defendant reserves the right to amend the submissions subject to any further documentation being presented to the court.

4. The Claimant has shown disregard and breached the Pre-Action Protocol for Debt Claims (Paragraphs 2.1(a) !!!8211;(d), 5.1 and 5.2).

a) The Claimant has chosen to stifle any engagement and communication between the themselves and the Defendant. They have acted unreasonable and disproportionately in a ploy to pursue this through court.
b) In response to a letter the that the Defendant has sent to the Claimant compensating him above and beyond the cost of the parking, the Claimant has responded in writing with a letter dated XX XX 2017.
The Claimant is quoted in the letter stating, !!!8220;Please be aware that no further direct correspondence is required or will be entered into regarding this PCN!!!8221;.
c) The Defendant could not respond any further as Claimant showed that they were not open to any further negotiation regarding the matter.
d) Further correspondence was sent by the Claimant in the form of a poorly drafted !!!8220;Letter Before Claim!!!8221; dated the XX XX 2018.
I quote the Claimant stating that !!!8220;A pack with evidence that will be relied on was to follow the letter!!!8221;.
To date no further correspondence with the evidence has been sent.
e) The Defendant was deprived of the courtesy to assess his liability of the debt in question.

5. If a contract existed, the Contract was Frustrated.
In Nicholl and Knight v Ashton, Eldridge & Co [1901] it was held that by naming the exact ship which was to carry the cargo, the contract was frustrated as it was impossible for this ship to carry the cargo within the contractually agreed period.

a) The Claimant made available a !!!8220;PaybyPhone!!!8221; app as a means of payment for parking sessions on said site.
b) On the occasions in question, the !!!8220;PaybyPhone!!!8221; application kept crashing and or would not register the payment.
c) This is on four of the over twenty occasions that the car in question has been parked on the said site and paid using the same application.
d) With persistence, and at a later time, payment for parking sessions was made for three of the occasions when the application was up and running.
e) The Defendant has also endeavoured to double the Claimants earnings for the parking sessions by offering them a further payment equivalent to four, Twenty-Four Hour sessions of parking on the said site.
f) The Claimant was made aware of the events that led the Contract Frustration on the occasions in question.
g) The Claimant was also offered a history of the application update from the application vendor that showed the fixes and patches to the !!!8220;PaybyPhone!!!8221; application.
h) The failure of the application, a means of payment for the site in question, constitutes a Contract Frustration.
i) It is also important to point out the fact that the !!!8220;PaybyPhone!!!8221; means of payment is no longer offered by the Claimant on the site in question.


6. There was inadequate and insufficient signage to form a contract.

a) In fact, it is contended by the Defendant: that the Terms and Conditions were not breached as the Signage at the time only stipulated !!!8220;PaybyPhone!!!8221; procedures.
b) On inspection of the evidence available, as a way of photographs, it clearly shows the !!!8220;PaybyPhone!!!8221; sign in the biggest of bold letters and the cost of parking sessions on the other side.
c) The closest signage of the Terms and Conditions that the Claimant might want to rely on were installed behind a mesh glass window far away from the other signs.
d) This made them illegible and inaccessible with no specificity on procedure to follow if the !!!8220;PaybyPhone!!!8221; application was not available.
e) It is further pointed out that on a recent return and inspection of the site, the Claimant has updated the signage on site, taken down the PaybyPhone sign, installed new coin machines.

7. Contrary to Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A) the Claimant is yet to provide the Defendant with a copy of their written contract with the landowner.
a) No indication is given as to the Claimant!!!8217;s contractual authority to operate on this land as required by both ATAs the British Parking Association (BPA) and the Independent Parking Community (IPC) of which the Claimant is a member.
b) The IPC!!!8217;s code of practice explicitly states; !!!8220;If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the; Creditor; within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges.
There is no prescribed form for such agreement and it need not necessarily be as part of a contract, but it must include the express ability for an operator to recover parking charges on the landowner!!!8217;s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions; The BPA!!!8217;s code of practice requires similar.

8. The Claimant has not provided evidence of the vehicle parked and unattended in the car park and the terms and conditions of the said contract on display during the periods in question.

9. The Claimant has not acknowledged receiving and processing payment for parking sessions for the vehicle in question on the dates, XX/XX/2017, XX/XX/2017 and XX/XX/2017 that were made as soon as the means of payment !!!8220;PaybyPhone!!!8221; app advertised by the Claimant was up and running.

10. It is therefore denied that:
a) A contract was formed
b) There was an agreement to pay a parking charge.
c) That there were Terms and Conditions prominently displayed around the site.
d) That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
e) The Claimant fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

11. It is further denied that the Defendant is liable for the purported debt.


Background

12. The site in question is a previous Public premises located next to the XXXX Train Station that was sold off privately about 3 years ago.
a) The most prominent signs on site advertised some of the cheapest parking rates that ranged from £1 to £5.50 and in the biggest of bold letters the use of !!!8220;PaybyPhone!!!8221; application to purchase parking sessions.
b) On over the 20 occasions that the car in question has been on the site, tickets for 12 to 36-hour sessions have been purchased using !!!8220;PaybyPhone!!!8221;.
c) On the occasions that the Claimant has issued PCN, the Defendant has tried but with frustration to make a payment through the !!!8220;PaybyPhone!!!8221; application. The application either kept crashing and or would not register the payment.
The Claimant was made aware of in the letter dated the XXXX 2017.
d) With persistence, payments for parking sessions were made through !!!8220;PaybyPhone!!!8221; on XX/XX/2017, XX/XX/2017 and XX/XX/2017 for three of the occasions. The Claimant is yet to acknowledge the receipt of such payments for the car in question.
e) No other sign stated or detailed what to do if payment could not be processed by !!!8220;PaybyPhone!!!8221; and neither was there any wording to suggest what to do in the case of frustration of contract.

Defence

The Defendant asserts that the Defendant is not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

13. On the material dates, the Defendant made all reasonable efforts to use the !!!8220;PaybyPhone!!!8221; application, however due to a failure of the app, outside of the Defendants control, the app did not take payment and kept crashing due to a buggy and unreliable user interface.
a) Payment for parking was made using a cashless system provided by !!!8220;PaybyPhone!!!8221;.
b) This is a distance contract which requires certain information to be supplied in advance.
c) The Defendant followed the !!!8220;PaybyPhone!!!8221; instructions exactly as shown on the signage on site.
d) The payment channel failed several times and did not register payments.
e) The failure of the payment service to accept payment is not the Defendants responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.
In Jolley v Carmel Ltd [2000] 2 !!!8211;EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

14. The contract formed was frustrated by the unexpected and uncommunicated failure of the Claimant's !!!8220;PaybyPhone!!!8221; app, which was a means of payment.
a) It is trite law that no party can be held liable for breach to another under such circumstances of frustration of contract.
In Nicholl and Knight v Ashton, Eldridge & Co [1901] it was held that by naming the exact ship which was to carry the cargo, the contract was frustrated as it was impossible for this ship to carry the cargo within the contractually agreed period.

15. It is denied that the !!!8220;PaybyPhone!!!8221; app, being indisputably an offer of a 'distance contract', complied with the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, which says: ''Confirmation of distance contracts: 16.-;
(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
(2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
(3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.''

16. The signage on this site was inadequate to form a contract with the motorist.
a) The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant is a member of the IPC at the time and committed to follow its requirements. Therefore, no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.
b) The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule!!!8221;.
c) In the absence of !!!8216;adequate notice!!!8217; of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.
d) The !!!8220;PaybyPhone!!!8221; signage does not state the what to do in case of !!!8220;Frustration of Contract!!!8221; or if Payment cannot be processed. The absence of this made the Defendant unaware of the terms and conditions in the event of Frustration of Contract. Consequently, there was no 'offer' for the Defendant to accept, and so no contract formed hence no breach of any !!!8216;relevant obligation!!!8217; or !!!8216;relevant contract!!!8217; as required under Schedule 4 of POFA.
e) Where contract terms have different meanings, as in this instance when a paper ticket was not issued due to the chosen method of payment, then Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt.
f) The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.
g) It should also be pointed out that the Claimant has now updated the signage on site, removing the !!!8220;PaybyPhone!!!8221; sign and cancelling the sites availability on !!!8220;PaybyPhone!!!8221;. They have installed new payment machines and several signs with terms and conditions have also been installed
h) It is not a matter of speculation, but it is contended that the system was flawed prompting the Claimant to make the various adjustments.
i) The Defendant has photographs and illustrations of the site dated as late as January 2018 and will provide these as evidence.

17. The Claimant!!!8217;s has artificially inflated the value of the Claim from £400 to £640. The Defendant submits that the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.
a) If the !!!8220;parking charge!!!8221; listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include !!!8220;a copy of the contract or documents constituting the agreement!!!8221;.
b) The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £XXX to £XXX. This appears to be an added cost with no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
c) The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

18. It is believed SIP Parking Ltd are not the lawful occupier of the land and therefore the Defendant has reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim
a) The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
b) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
c) The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third-party agent, the Claimant may not pursue any charge.
d) The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

19. The Claimant has not followed procedure;
a) The Claimant is put to strict proof that the terms and conditions were breached but has not provided proof following the Letter before Claim.
b) Quoting the Claimant in a letter dated the XX XX 2017 !!!8220;Please be aware that no further direct correspondence is required or will be entered into regarding this PCN!!!8221;.
c) The Claimant is further quoted in a Letter Before Claim dated XX-XX-2018: !!!8220;In view of this, we suggest that you retain this letter for your records, further details will follow as part of the legal pack which will sought to be relied upon in court.!!!8221;
d) No further correspondence was received from the Claimant in the form of the !!!8220;Legal Pack!!!8221;.
e) The Claimant has shown disregard and breached the Pre-Action Protocol for Debt Claims (Paragraphs 2.1(a) !!!8211;(d), 5.1 and 5.2).
f) Payment for parking sessions on three of the occasions have already been made.
g) The Defendant has also offered the Claimant £XXX on the XX-XX-2017 as a payment of cheques amounting to £XX.XX each.
h) The Claimant rejected the payment that covered more than the cost of parking and consequently they failed to mitigate their losses, which potentially rendered any claim for contractual damages void.

20. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the Claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:

21. The Court is invited to dismiss the Claim, and to allow such Defendant!!!8217;s costs as are permissible under Civil Procedure Rule 27.14

Closure of reasonable grounds or particulars for bringing a claim:

22. The Claimant has not provided enough details in the particulars of claim to file a full defence.
In particular, the full details of the contract which it is alleged was broken have not been provided.
It just states !!!8220;parking charges!!!8221; which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The Particulars of Claim are incompetent in disclosing no cause of action.

23. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8).
In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their !!!8216;roboclaim!!!8217; particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: !!!8216;those which set out no facts indicating what the claim is about, for example !!!8216;Money owed £5000!!!8217;.!!!8217;

24. The SIP Parking Limited are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.

25. The Defendant believes the terms for such conduct is !!!8216;robo claims!!!8217; which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

26. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.

27. The Defendant denies the claim in its entirety voiding any liability to the Claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

28. The Defendant invites the court to dismiss this claim out as it is in breach of pre-court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant!!!8217;s costs as are permissible under Civil Procedure Rule 27.14.

Redx

simple observation


there should be a "statement of truth" as the last sentence

KeithP

19b) mentions a letter dated 21 November 2018. Is that right?

What is the Date of Issue on your Claim Form?
When did you do the Acknowledgement of Service?

GetSomeAdvice

Thanks KeithP, it is incorrect date. I will amend that.

GetSomeAdvice

Hi Keith,
The Claim is dated the 06/07/2018 and i acknowledged it on the 11/07/2018.