Wrong reg entered - defence???

texaspete777

A friend of mine has a problem. Let's call him Bill.





Bill entered into a private car park outside a pub. He knew it was a 'pay and display' car park. Even though the price was an exorbitant £6, Bill paid it as there was nowhere else to


park for some distance.





Bill received a letter, some months later, from a well known car park cowboy operator advising him of a charge, stating that a valid ticket wasn't displayed showing a corresponding


registration. Unfortunately for Bill, he had entered the registration of his other car. He sent an email to the company in question, asking them to clarify the charge and also providing them


with the registration of his other car to see if he had entered that one instead. Bill requested that, if indeed he had entered the wrong registration and that no other car had entered the


car park with this reg, could the charge be waived, as he had clearly paid for his space. Bill did (perhaps foolishly) admit to being the driver and being aware of the 'pay and display').








The car park company replied and confirmed that this was the case(specifically stating, in their response, the reg that had been 'paid for'), but that they were unwilling to waive the charge.





Bill tried appealing to the independent appeals process, but it was rejected.





Having spoken to Bill about this at length :B) , Bill is extremely aggrieved at this and feels that he had made an honest attempt to pay his way, has made an honest error, and is


ultimately being held to ransom on a so-called technicality. He has attempted to resolve this by being upfront and honest(which was quite clearly the wrong approach). Regardless, he


intends to defend his claim, but he wants to seek the knowledge, experience and ultimately the advice of experts, to see if he, having already admitting certain facts, can create a viable


defence. Bill hopes that their email response, which proves his intention and therefore a genuine mistake will be helpful with this....?





Any help and advice is very much appreciated.





Many thanks


Rgds


Bill's friend.

KeithP

Get Bill to post in his own name.

Get Bill to read the NEWBIES FAQ sticky thread.

Having done that, get Bill to post on this thread if he has further questions.

Coupon-mad

Same as the other thread exactly like this (near the top of the forum, first few pages) where I recently suggested that the OP sends the parking firm by email, a 'Notice of Rectification' from both registered keepers, under Article 18 of the GDPR.

He entered his own reg, but was driving his wife's car. Go find it.

The next step after a Notice of Rectification (if they refuse), is an ICO complaint if they refuse to rectify the data, based on the fact they KNOW the wrong car was not there, and KNOW the payment relates to the car in their images.

texaspete777

Regrettably, It's all been left a bit late.

A county court claim has been served, acknowledgement of service activated and the 28 days is up tomorrow. A defence must be entered.

It is highly probable that the claimant will produce proof of the admission of the identity of the driver (foolishly provided in the initial appeal - lesson learnt).

With all this in mind, one would presume that the only option left would be to hope the judge recognises that the payment was actually made, the honest mistake and that the fact that the claimant has previously acknowledged these facts.

Le_Kirk

It's not too late to enter a defence, I believe it can be sent by e-mail up to 16.00 on the last day but will stand corrected if others know differently.

texaspete777

Not too late to enter a defence, but too late to take any other approach other than honesty and providing the proof that cowboys have acknowledged the mistake made....? (which is essentially what the defence will outline)

KeithP

What is the exact Date of Issue on the Claim Form?

texaspete777

The issue date is 13 Aug 18. Is that the same as the date of service? If so, I calculate that today is the last day on which to submit a defence....

KeithP

No, the date of issue is not the same as the date of service.

With a Claim Issue Date of 13th August, and having done the AoS in a timely manner, you have until 4pm on Monday 17th September 2018 to file your Defence.

A few more days than you thought.


When you are happy with the content, your Defence should be filed via email as described here:

1) Print your Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for the Directions Questionnaire and come back here.

texaspete777

Happy New Year all.





So, a court date has been established and a defence / evidence must be submitted in the next week.





I've read the sticky and the closest defence that seems to be relevant to the situation i.e wrong VRN entered, involved the use of an app (for payment). Much of that defence relied on the fact that the app was 'at fault', therefore is irrelevant to this case. I have amended the example, removing what I believe to be irrelevant and adding what I believe to be pertinent.




IN THE COUNTY COURT AT



CLAIM No: XXXXXXX



BETWEEN:

Vehicle Control Services Ltd (Claimant)

-and-

????? (Defendant)

DEFENCE



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

2. It is admitted that the Defendant was the driver of the vehicle in question at the time of the alleged incident.

3. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXXXX when it was parked at The Airport and Pub Grill, Manchester Airport, on XXXXX 2017.

3.1. The PCN stated the contravention as 'Parked without payment' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because it is already common ground that the correct parking charge (tariff) had already been paid.

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

4. The Defendant has made a reasonable appeal, supplying the Claimant with the VRN of another vehicle XXXXXXXXX of which they are also a driver and that the Claimant has, both in their response to this appeal and in their submitted evidence(system data), provided proof that the VRN for the suggested vehicle (surrendered by the Defendant) was entered into the payment machine and that no evidence of this other vehicle being parked in the car park has been provided.

4.2 The Claimant submits that it is not unreasonable to assume that the defendant had both vehicles at the site, yet it has provided no photographic evidence of the vehicle(bearing the VRN XXXXXXX) either entering or exiting the car park on this date. The Defendant submits that, without this evidence, the claimant’s suggestion should be disregarded.

4.1. Thus, given the Defendant's appeal and the ANPR camera data stream, which proved which car of the two, was actually in this car park, the Claimant knew about the error and was afforded ample opportunity to rectify the inaccurate data held by their system. At all times, from the ANPR image, the Claimant knew the correct VRN and this data inaccuracy could have been easily rectified at no cost





5. It is denied that:

a. A contract was formed to pay anything more than the advertised tariff;

b. There was any agreement to pay a further penalty parking charge;

c. That there were Terms and Conditions prominently displayed around the site which prominently displayed the £100 penalty, in at least as large lettering as the tariffs shown at the machine.

d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums;

e. the claimant in fact expended the claimed additional sums;

f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice, of which they were member at the time.





No agreement on the penalty and no contract formed by conduct



6. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.



6.2. Further, the Claimant will no doubt hope to convince the court that a 'relevant contract' existed and was breached. As this would be a consumer contract, it must be 'fair' and 'transparent' as set out in the Consumer Rights Act 2015, and must also be a valid and enforceable payment contract that is not unconscionable, given the facts of the case. The Defendant avers that this punitive charge fails in all respects.



6.2.2. And the Claimant would have the court believe that a 'relevant obligation' existed, which under the Protection of Freedoms Act 2012 (setting out the will of Parliament for parking tickets issued on private land, even if a Claimant is not relying upon that Act) is defined as ''an obligation arising under the terms of a relevant contract''.



6.2.3. The Defendant avers that there was no such obligation or burden that could fairly and squarely fall at the feet of the Defendant that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 'Prohibitions' of the Consumer Protection from Unfair Trading Regulations 2008.



7. The Claimant may also 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 facts. To quote from the decision in Beavis:



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.''



No standing or landowner authority



8. Further and in the alternative, 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 under defined parameters (including when caused by failure of their own data processing/excessive storage) and to form/offer contracts in their own name, and to pursue payment by means of litigation.



No legitimate interest or commercial justification



9. It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing paying patrons for a disproportionate penalty, where the Claimant has provided reasonable mitigating circumstances for not displaying a so-called “valid ticket” and where an opportunity for rectification of the matter has been provided

9.2. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.



10. 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.



I believe the facts contained in this Defence are true.



Name

Signature

Date






Any advice is always much appreciated and you have my thanks in advance.

Redx

sadly, either you and/or your mate BILL are wrong, because any defence MUST have been submitted in september of 2018

plus you have not posted the actual defence submitted back in september on this forum, so nobody here has seen it


if you (ie:- BILL) have a court date, then its AFTER a defence has been submitted, so the paperwork will mention witness statements and evidence to be submitted to your local court and the claimant by a certain date (possibly 2 weeks before the hearing date)


it is far too late to submit a defence