Is this letter a Letter Before Claim ?

KeithP

You've had four weeks. Show us your draft defence when you are ready.

Le_Kirk

That's 21 minutes, a stretch by anyone's maths or imagination. Have you checked the code of practice for the PPC BPA/IPC? What does it say? If you assume 10 minutes to drive in, find somewhere to park, read the t&c's pay etc., that leaves 11 minutes to find. You could try it took this long to leave due to conditions on the day or congestion at the exit.

beamerguy

silverchoice wrote: »

I need to complete my defence before Monday. Been so busy clean forgot about it. Luckily BW legal have sent me a reminder letter !



We paid for 2 hours parking. We arrived at 16:15 and left at 18:36. Can I not argue this is within a grace period ?

Well. the BPA says:

Our guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket,

The BPA’s guidance defines the ‘grace period’ as the time allowed after permitted or paid-for parking has expired but before any kind of enforcement takes place.

NCP are BPA members

ANPR only registers the time in and out, It does not and it cannot account for delays in the car park
IE: Looking for a space or a queue to leave

This is why ANPR is not suitable for car parks

READ HERE
https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods

silverchoice

I used this in my witness statement in a case for my mother:


[FONT=&quot]Paragraph 13 of the CoP clearly states that a grace period is to be applied to parking. The CoP makes clear that such grace periods are to be applied both at the start of any parking period and also at the end of any parking period. The whole point of these grace periods is to allow drivers time to find a parking space and to read the signage prior to commencement of the period of parking, and time to exit the carpark once they have finished parking. Grace periods are not defined, but the CoP requires them to be "a minimum of 10 minutes" either side of the actual parking (paragraphs 13.2 and 13.4).[/FONT]

silverchoice

First draft of defence, comments welcome:

[FONT=&quot]__________
DEFENCE[/FONT]

[FONT=&quot]1 Background
1.1 The Defendant is the registered keeper of the vehicle in question. The claim relates to an alleged debt arising from an alleged ‘parking contravention’, which occurred at Doncaster East Laith Gate on 7th April 2018.
1.2 The allegation is described by the Claimant as ‘parking longer than the time paid for’ and offers timestamped ANPR camera images and PDT machine records as evidence of the alleged contravention.
1.3 The Defendant denies the contravention due to the alleged overstay period being within a reasonable period of time allowed for observation, locating a parking space, parking, obtaining a ticket, and exiting the car park.

2 Denial of parking contravention
2.1 The BPA’s Code of Practice states (13) that there are two grace periods: one at the end and a separate 'observation period' at the start. For the avoidance of doubt this is NOT a single period with a ceiling of just ten minutes, and the authority for this view is in this BPA article by Kelvin Reynolds, BPA Director of Corporate Affairs where he states on behalf of the BPA that there is a difference between 'grace' periods and 'observation' periods in parking and that good practice allows for this:
“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. Our guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket. No time limit is specified. This is because it might take one person 5 minutes, but another person 10 minutes depending on various factors, not limited to disability.”
https://www.britishparking.co.uk/News/good-car-parking-practice-includes-grace-periods
BPA (18.5) states:
''If a driver is parking with your permission they must have the chance to read the terms and conditions before they enter into the contract with you''.
BPA's Code of Practice (13.2) states:
''If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.''
BPA (13.4) reiterates this fact:
''You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.''
https://www.britishparking.co.uk/write/BPA_AOS_CODE_OF_PRACTICE_CURRENT.pdf
Notwithstanding the BPA rules, relevant contract law also dictates that consumers must be given an opportunity to consider terms and conditions before entering into a consumer contract, especially where one of the terms is unexpected (new terms for this site) and onerous. POPLA Assessors have stated in recent decisions that a reasonable time period for this would be up to about 10 minutes.
2.2 In a recent (02/052019) Court of Appeal decision in the case between NCP (Appellant) and HMRC (Respondent) it was made clear that offer and acceptance of a parking contract can only take place once the payer has inserted payment into the machine and pressed the green button to obtain a ticket:
“English law, of course, generally adopts an objective approach when deciding what has been agreed in a contractual context. Here, it seems to me that, taken together, the tariff board and the statement that "overpayments" were accepted and no change given indicated, looking at matters objectively, that NCP was willing to grant an hour's parking in exchange for coins worth at least £1.40. In the hypothetical example, the precise figure was settled when the customer inserted her pound coin and 50p piece into the machine and then elected to press the green button rather than cancelling the transaction. The best analysis would seem to be that the contract was brought into being when the green button was pressed. On that basis, the pressing of the green button would represent acceptance by the customer of an offer by NCP to provide an hour's parking in return for the coins that the customer had by then paid into the machine. At all events, there is no question of the customer having any right to repayment of 10p. The contract price was £1.50.
This is the contractual analysis in the hypothetical example where the customer has only a pound coin and a 50p piece, and therefore has no alternative but to pay £1.50 if she wishes to park in the car park. However, the analysis is the same even if it is possible for the customer to obtain the right coins, for example by obtaining change from another user of the car park. If the customer nevertheless chooses to insert £1.50 and presses the green button, it remains the case that she has accepted the offer to provide an hour's parking at that price.
This analysis may be slightly different from that of the UT, which referred to an offer by NCP to grant the right to park for up to one hour in return for paying an amount between £1.40 and £2.09. In fact the offer made by NCP is more specific, to grant the right to park for an hour in return for the coins shown by the machine as having been inserted when the green light flashes. That is the offer which the customer accepts.”
http://www.bailii.org/ew/cases/EWCA/Civ/2019/854.html
2.3 It is clear from this decision that a contract cannot possibly begin upon driving into the car park, not least because at that point the driver has not had the opportunity to read the terms and conditions of the contract that may or may not be entered into.
2.4 Timestamps from the Claimant’s ANPR camera images indicate that the vehicle entered the car park at 14:15 and on exited the park at 16:36. The Claimant’s PDT machine record indicates that the driver of the vehicle paid for 2 hours parking. The Defendant submits that the vehicle was parked for not longer than 2 hours.
2.5 Given the time periods specified by the BPA, the Defendant submits that the vehicle was not parked for ‘longer than the time paid for’ and that no parking contravention took place. Therefore, the Defendant invites the court to dismiss the claim as being without basis.

3 Denial of contract and denial of any breach, or liability
3.1 The Claimant has failed to make clear the legal basis under which 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 breached any contractual agreement with the Claimant, whether express, implied, or by conduct.
3.2 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.
3.2.1 The sign displaying the parking charges is obscured by a pole at both entrances to the car park so cannot be clearly read and understood, as it also positioned too high to be clearly visible when seated in a vehicle.
3.2.2 A smaller version of the sign described above is positioned at multiple points around the perimeter of the car park, however these signs are positioned at the top of tall poles, placing them too high up to be read by any normal-sized person.
3.2.3 A further sign located at the entrance displaying the car park terms and conditions - in full – is rendered in very small text (each letter is approximately 4mm high). Due to the position of the sign at the car park entrance, it is not possible for a driver to stop and read the terms and conditions before entering the car park as the entrance is off a busy town centre road and to stop here would be to block the highway.
3.2.4 Further, is it both difficult and dangerous to approach the sign on foot to read the terms and conditions as the sign’s position means that to read it, an individual would have to stand in the flow of traffic entering the car park.

4 No standing or authority to form contracts and/or litigate
4.1 The Claimant is put to strict proof that it has sufficient 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 against individuals whom it alleges to have committed a parking contravention.

5 Claimant is attempting to recover unrecoverable charges
5.1 The amount claimed is £254.88 which bears no relation to the loss suffered by the Claimant. The amount demanded in the original Parking Charge Notice issued by the Claimant is £60. Subsequently the Claimant demanded £100. The Claimant has now increased this amount to £160 and is attempting to recover court fees and legal expenses of £75.
5.2 The Defendant denies that any of the above amounts are owed to the Claimant, and the Claimant is put to strict proof that it has incurred any loss at all as a result of the Defendant’s actions.

6 No 'legitimate interest' or commercial justification - Beavis is distinguished
6.1 With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. 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. The driver has not been identified, the signs displaying the terms are not easy accessible, the VRN data is harvested excessively by two automated but conflicting data systems, and as such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.
6.2 The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:
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''.
Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''
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.''
6.3 Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be £1 (the charge for 2 hours parking being £2.60 and the charge for 3 hours parking being £3.60)
6.4 Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which is £3.60. The PDT machine record indicates that a sum of £3 was paid for two hours’ parking (NCP have elected to install machines which do not give change, therefore has already profited in the sum of 40p). Regardless, the sum owed by the Defendant cannot be more than £1.
6.5 No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.
6.6 In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of the Claim by adding purported costs of £175, which the Defendant submits have not actually been incurred by the Claimant.

7 Summary
7.1 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. The Defendant invites the court to dismiss the claim.[/FONT]

1505grandad

No mention of which car park this is in your thread.

You seem to have done a direct c & p of this post in thread of BRRN:-

https://forums.moneysavingexpert.com/discussion/comment/75952685#Comment_75952685

Just checking that yours is the same car park in view of the sign description etc.

KeithP

Well spotted Grandad.

Para 2.4 even shows that the vehicles of both posters entered and left the car park at exactly the same times.

An amazing coincidence.


OP, you really must make sure that your Defence reflects your circumstances exactly.

Have another go.

silverchoice

KeithP wrote: »

Well spotted Grandad.

Para 2.4 even shows that the vehicles of both posters entered and left the car park at exactly the same times.

An amazing coincidence.


OP, you really must make sure that your Defence reflects your circumstances exactly.

Have another go.

I’ve spotted that and changed it.

silverchoice

1505grandad wrote: »

No mention of which car park this is in your thread.

You seem to have done a direct c & p of this post in thread of BRRN:-

https://forums.moneysavingexpert.com/discussion/comment/75952685#Comment_75952685

Just checking that yours is the same car park in view of the sign description etc.

Should I remove any mention of the signage?

KeithP

silverchoice wrote: »

Should I remove any mention of the signage?

Certainly not.

It is the signs that forms the basis of any contract between the motorist and NCP..

As said before, you just need to make sure that whatever is in your Defence matches your circumstances.